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PREFACE. 



For the observation of historical data, or the study of 
particular institutions, that point of view will be of great- 
est assistance in classification, will contribute most to an 
understanding of the relations of social and political 
phenomena, which allows of the broadest survey. This 
fact has long been recognized in the natural sciences. 
The student of botany, for example, endeavors to take a 
scientific point of view from which he can observe the 
phenomena of life in the particular plant which he is 
studying as related to all other plants and forms of life. 
Making his observations in this manner, the results of his 
investigation fall within the scope of a general science; 
his work becomes a contribution to the sum of existing 
knowledge within the biological field. If, however, he 
takes a standpoint which does not admit of broad survey, 
which will not readily permit the results of his labor to be 
used by those who are studying the life history of other 
plants, he will have done little to facilitate biological 
thought, or to give a better understanding of biological 
phenomena. In seeking for such a point of view for in- 
vestigation in the social and political field one finds little 
guidance in the theoretical writings of the past. The 
many writers on these subjects have taken almost as 
many points of view ; they have not yet reduced the sub- 
ject to a common basis of inquiry. Recent writers on 
social subjects, however, are beginning to look for a 
common basis in biological and psychological law. It is 
conceived that the activities "of man may be reduced to a 
science; and that the various social activities may be in- 
vestigated from a common basis — the different social 



vi PREFACE. 

sciences being differentiated only by the different inter- 
ests which become the subject of inquiry; but while this 
has been the trend of modern thought, very little has as 
yet been accomplished in the way of putting political 
science on an evolutionary basis which would be common 
to the other social sciences. A recognition of this tend- 
ency, and of the desirability of viewing our institutions in 
their relation with other social and political movements 
has led me to venture on so broad a generalization as 
that contained in the first chapter following. It is urged 
in justification that it has afforded greater facility of 
thought on the relations of the political phenomena here- 
in considered than any other that, so far, has been sug- 
gested. It may not stand the test of criticism, it may fall 
by reason of its failure to account for all the phenomena 
within the field of investigation ; yet in the absence of an 
accepted method of procedure in this field, it is held out 
as an effort made in the direction of getting a point of 
view that may bring political history and law within the 
range of modern, social-scientific inquiry. 

Among the reasons that may be urged for viewing po- 
litical institutions from an evolutionary standpoint there 
are two which deserve special mention: (i) That that 
which is can be best understood by considering that 
which has been; (2) that it is only by studying political 
life as a continuous process that we are enabled to deter- 
mine relations of cause and effect. For the purposes of 
both the jurist and publicist an evolutionary study should 
conduce to the best results. The lawyer looks backward 
for the purpose of ascertaining what the established order 
is, and there his inquiry ends. The publicist looks back- 
ward for the purpose of viewing the established order as 
a means of determining the relations of cause and effect; 
he takes into account existing conditions; he observes the 
effects of a particular establishment working under these 
conditions; he holds in mind the ideals of the State as a 



PREFACE. vii 

norm; he would know in what manner the law fails to 
secure the ends of the State. The publicist, relying on 
his knowledge of the experience of the past, projects for 
the present and the future; he would bring about such 
modifications in law and government as will best adapt 
them to the purposes of society. 

As theories and conclusions are always hypothetical 
and more or less subject to error, such of these as are 
offered have been distinguished from the data upon which 
they are based; they are offered for what they may be 
worth. 

With these considerations in mind the work in hand 
has arranged itself logically under the following divi- 
sions: 

I. INTRODUCTORY CONSIDERATIONS. 

(i) The evolution of government prior to the period of 
American colonization. 

(2) The growth of government during the colonial pe- 
riod. 

II. THE EVOLUTION OF PROVISIONS FOR POPU- 
LAR CO-OPERATION IN GOVERNMENT. 

(1) Co-operation by popular assembly. 

(2) Co-operation in representative democracy, or govern- 
ment by delegation. 

(a) In the adoption and amendment of constitutions. 

(b) In the election of governing agents. 

(c) By petition, and the various forms of political 
activity guaranteed in the constitutions. 

(d) In legislation and administration. 

III. THE CAUSE OF THE GROWTH OF DEMOCRACY 
IN THE UNITED STATES, OR THE POLITICAL 
AND SOCIAL CONDITIONS WHICH HAVE OP- 
ERATED TO CHANGE THE ESTABLISHED OR- 
DER. 

IV. THE RESULTS OF POPULAR CO-OPERATION, 
OR MODIFICATIONS MADE TO THE END OF 
ADAPTING OUR INSTITUTIONS TO THE WEL- 
FARE OF THE PEOPLE. 

(1) Modifications relative to elections and appointments. 

(2) Modifications relative to the exercise of the functions 
of legislation and administration. 

(3) Modifications in the private law. 



vin PREFACE. 

V. THE PROBLEMS OF TO-DAY, OR THE MODI- 
FICATIONS OF LAW STILL NECESSARY TO BE 

MADE. 

(i) Problems arising from ordinary peace conditions. 
(2) Problems arising from the recent war. 

VI. A CONSIDERATION OF THE DUTIES OF CITI- 
ZENSHIP UNDER FORMS OF POPULAR GOV- 
ERNMENT—CONCLUSION. 

This opportunity is taken to acknowledge indebtedness 
to Prof. H. P. Judson for valuable suggestions and for 
the distinction in thought made between the "social 
state" and the "political state" — the social state being 
used as including all members of society who reside 
within the jurisdiction and under the protection of the 
government, the "political state" being used to mean 
all those politically organized people who have a right 
to exercise powers or co-operate in government, by 
election or otherwise. 

To Professors Ernst Freund and Thorstein B. Vebleu 
of the University of Chicago and Professor Frederick S. 
Turner of the University of Wisconsin I am especially 
indebted for valuable suggestions made in course of in- 
struction and criticism. I wish also to acknowledge my 
obligation to Professors William Hill, A. C. Miller, J. 
Laurence Laughlin, F. W. Shepardson, Benjamin Terry, 
Edmund J. James and Edwin E. Sparks of the Univer- 
sity of Chicago, James Riley Weaver of De Pauw Uni- 
versity, Thomas W. Page of Randolph-Macon College, 
H. Parker Willis of Washington and Lee University, 
Mr. George Gushing Sykes of the Editorial Staff of 
the Chicago Record, and Mr. George G. Tunell, Ph. D. 
(Univ. of Chicago). I am also indebted to Miss Maude 
L. Radford, M. A. (Univ. of Chicago), and Miss Ellen 
Lee, A. B. (Univ. of Pacific), for valuable assistance 
rendered from time to time in the labor of preparation. 

F. A. C. 

New Whatcom, Washington, 
October 1, 1898. 



CONTENTS. 



CHAPTER I. 

THE EVOLUTION OF THE MODERN STATE. 

The motive to political activity, 7. Two forms of organization 
— the predatory and the industrial, 8. Conflicts arising 
between these two forms of organization, 11. The prin- 
ciple of political supremacy, 12. The adaptation of the 
different forms of political organization to the principle of 
supremacy, 12. The self limiting qualities of absolutism, 
12. The evolution of a polity including the best prin- 
ciples of both, 13. Historic examples of the operation of 
the evolutionary forces in the state — Asia, 13; Greece, 15; 
Rome, 15. The significance of the fall of the Roman Em- 
pire, 15-16. The importance of the mediaeval cities in the 
evolution of the state, 16. The rise of industrial co-opera- 
tion, 16-24. The political contest between .absolutism and 
popular co-operation in the Mediaeval period, 24-27. The 
importance of the conflict between Spain and the Nether- 
lands, 27-28. The peace of Westphalia (1648) a second 
turning point in the growth of Democracy, 28. The fall 
of the Dutch republic, 29. The movement continued 
through England, 29. The importance of the revolution of 
1688 in the development of the modern state, 31. The in- 
fluence of colonization, 33-37. The contribution of the 
United States to "government for the governed," 37-38. 

CHAPTER II. 

THE EVOLUTION OF GOVERNMENT IN THE COLO- 
NIES. 

The foundation a fiction of Absolutism, 40. The first insti- 
tutions erected thereon of similar nature, 40-41. The fail- 
ure of attempts to transplant the feudal institutions of the 
Old world to America — Charters to Gilbert and Raleigh, 
41; the first charter of Virginia (1606), 41. The use of 
the private corporation in colonization — in Virginia, 42-6; 
in Massachusetts, 46-48; in Georgia, 48-51; the evolution 
from an organization for private gain to an institution 
of government based on general welfare, 41-56. The vol- 
untary association as a form of Colonial enterprise, 51 ; 
its first employment an accident, 51; its evolution in New 



CONTENTS. 

Plymouth, 51-55; in Connecticut, 53-57; in Rhode Island, 
57-59; in New Haven, 60-63. The proprietary — its evolu- 
tion in Maryland, 63-64; in New York, 64-66; in New 
Jersey, 66; in Pennsylvania, 67; in Delaware, 68; in New 
Hampshire, 68; in The Carolinas, 69-72. Summary of the 
evolution of government in the Colonies, 72-75. 



CHAPTER III. 

GOVERNMENT BY POPULAR ASSEMBLY, OR PURE 
DEMOCRACY. 

The growth of the colonies from the small, isolated commu- 
nity to the federated empire, 76. Popular co-operation in 
government of two kinds — by popular assembly or pure 
Democracy and by use of the Referendum, or representa- 
tive Democracy, 76. The forms of pure Democracy em- 
. ployed in Colonial times — in the colony, 77; the county, 
77 \ the borough, 78; the manor, 78; the hundred, 78; 
the parish, 78-79; the township, 79; the surviving form 
of pure Democracy, 79; the adaptation of the popular as- 
sembly to the local community, both urban and rural, 80- 
90. The growth of the township system, 90. Its destiny, 
91-97- 

CHAPTER IV. 

GOVERNMENT BY DELEGATE OR REPRESENTA- 
TIVE DEMOCRACY. 

Representative government in Democracy adapted to a broad 
political organization, 98; the result of the operation of 
the law of "the survival of the fittest," 98. The adoption 
of the representative form by the people of the United 
States, for federal and state government, 98-99. The prin- 
ciples underlying our government, 99. The necessity of 
making our government responsible and responsive to the 
people, 100. Means employed to this end, 100-101. Popu- 
lar co-operation in government in its present form a pro- 
cess of gradual evolution, 102. Reasons for the slow 
progress made, 102-107. Classification of acts of popular 
co-operation in government in the United States, 108. 



CHAPTER V. 

POPULAR CO-OPERATION IN THE ADOPTION AND 
AMENDMENT OF CONSTITUTIONS. 

I. Our first fundamental political establishments based on con- 
tract or compact, 109-110. Our constitutions compacts 
among the people for the establishment of government, 



CONTENTS. xl 

no. These compacts at first made by popular assemblies, 
no. Agency or delegation introduced by the representa- 
tive system, 111-112. Co-operation of the people in gov- 
ernment by means of the Referendum, in. Table and re- 
sume showing evolution, 112-113. 

II. No provision for amendment made in early constitutions, 
114. Such provisions demanded by the rule of progress, 
114. The early provisions made for change — the Council 
of Censors, 115; the convention, 116; the impracticability 
of these methods of amendment, 117. The employment of 
the legislature as initiatory agent, the people ratifying, 
117; classification of provisions of this kind, 120; resume 
of classification, chronologically, 125; from standpoint of 
complexity, 126; from standpoint of expediency, 126. Sum- 
mary of evolution — conclusion. 

CHAPTER VI. 

POPULAR CO-OPERATION IN THE ELECTION OF 
OFFICERS. 

Two elements necessary to the operation of a frame of gov- 
ernment, (1) corporate organs, (2) living agents, 128. The 
evolution of government in this relation, 128. Compari- 
son of the ancient and the modern regime, 128. Political 
conditions in the early colonies, 129. Qualifications of 
electors in colonial times, 130. Conditions of suffrage 
• arising from foreign influence — religion, 132; morals, 135; 
property, 137; taxation, 144; legal status. 148; race and 
color, 149; sex, 152; broadening of the suffrage, 152. Quali- 
fications necessary to good government, 153. Conclusion, 
155. 

CHAPTER VII. 

PROVISIONS FOR IMPRESSING THE POPULAR 
WILL ON GOVERNMENT. 

Relation of the popular will to government, 157. The ele- 
ments of the state — (1) law, (2) politics, 157. The rela- 
tion of politics to the general welfare, 157-158. Provisions 
for popular activity, 158 — Guaranties of peaceable assembly, 
159; free speech, 160-164; practices in Europe, 160; prac- 
tices in the Colonies, 161 ; ancient restrictions included in 
"being responsible for the abuse thereof," 163; laws against 
apostasy; heresy; non-conformity; libel; slander, and trea- 
son, 164-168. Removal of restrictions by constitutional 
provisions, 168-169. The right to consult for the common 
good, 170; to petition, 170; to instruct representatives, 171. 
The right of popular initiative, 173. Subjects in which 
used, 175. Conclusion, 176. 



xii CONTENTS. 



CHAPTER VIII. 

POPULAR CO-OPERATION IN LEGISLATION _AND 
ADMINISTRATION, (i) UNDER THE UNWRIT- 
TEN CONSTITUTION. 

Classes of provisions for popular co-operation in representa- 
tive government, 177. The composition of the Constitu- 
tion of the United States after 1787, 179. Distinction be- 
tween written and unwritten constitutions, 180. Provis- 
ions for co-operation under unwritten constitution — popular 
initiative, 182; the referendum, 182. The referendum in fed- 
eral statutes, 182; in the states during the early national 
period, 182-185; the referendum in the states during the 
later period, 185; its present use, 185-189. 

CHAPTER IX. 

OPINIONS OF THE COURT AS TO THE VALIDITY 
OF POPULAR CO-OPERATION IN LEGISLATION 
AND ADMINISTRATION UNDER THE UNWRIT- 
TEN GOVERNMENT. 

Legal foundation for popular co-operation, 191. Analysis of 
cases, 192, et seq. Doctrines announced by the Court — 
the uncertainty and unsettled condition of judicial thought, 
193-200. The fallacious positions taken, 194-204. The doc- 
trines finally evolved — (1) relative to general laws, (2) rela- 
tive to local laws, 209. Conclusion. 

CHAPTER X. 

CONSTITUTIONAL PROVISIONS FOR POPULAR CO- 
OPERATION IN ACTS OF GOVERNMENT BY REF- 
ERENDUM. 

Relation of judicial decisions to development, 210; illustrations, 
210-21 1. Two classes of referendal provisions in constitu- 
tions, 211-212. Provisions for popular co-operation in acts 
of general government, 212-220. The subjects of referendal 
use in acts of general government, 221-222. Constitutional 
provisions for popular co-operation in acts of local gov- 
ernment, 222. Subjects of referendal use in acts of local 
government, 222; statement of same in order of chronolo- 
gical development, 223-240. Summary of constitutional 
provisions for referendum, 241. 



CONTENTS. . xni 



CHAPTER XL 

CAUSES OF THE GROWTH OF DEMOCRACY OR THE 
CONDITIONS WHICH HAVE MADE CHANGES 
IN OUR INSTITUTIONS NECESSARY. 

The relations of human activities to national laws, p. 242. The 
law of habit — its economic importance, 242. The law of 
custom — its political and social importance, p. 243. The 
law of change — the result of the conscious efforts of man 
to readjust himself to environment, p. 243. The new en- 
vironment — the altered conditions which have dictated to 
Americans the advantage of change in their laws and in- 
stitutions, p.- 244 et seq.; (1) a new continent, 244; (2) the 
rapid increase of population and wealth, p. 244; (3) the 
independence of the Colonies, p. 245-246; (4) conditions 
giving rise to institutional changes during the early na- 
tional period, p. 246 et seq.; (5) the growth of political 
parties, p. 247; (6) the various predatory activities under 
the new government, p. 247. The modifications of our 
institutions largely attributable to the conflict between those 
who seek to use the government for private ends, and 
those who wish to employ it in the interest of the gen- 
eral welfare, p. 247; the predatory activities in the states, 
p. 248-257; the growth of the "spoils system" in the United 
States, p. 257-281; the subversion of the parties to the 
ends of spoils,, p. 281. "Patronage" as means of control 
of parties, p. 282. The subjects of spoliation under the 
regime of political spoilsmen, p. 282-283. 

CHAPTER XII. 

MODIFICATIONS OF LAW AS THE RESULT OF POP- 
ULAR CO-OPERATION RELATIVE TO ELEC- 
TIONS AND APPOINTMENTS. 

I. The pessimism of to-day, 285. Questions for the citizen, 
285-286. The evolution of our institutions as a result of 
popular co-operation, 286. The means of protecting the 
people against control of government in the interest of 
organized spoliation, 287. Adaptations relative to elec- 
tions, 287 et seq. Adaptations made for the purpose of 
preventing control of the party by the spoils organization, 
288. Provisions against coercion, intimidation and undue 
influence, 290-293. Provisions to secure freedom of elec- 
tions, 293-294. The Australian ballot system, 294-295. 
Provisions for securing equality of elections, 295. The 
"general ticket," 296. The "district system," in elections, 
297-301. The "limited vote," 301. The "cumulative vote," 
302. The "indirect election," 305. The failure of all these 
to secure to citizens equality of electoral strength, 305. 
Conclusion relative to elections, 305-306. 



xiv . CONTENTS. 

II. Adaptations made relative to appointments, 306 et seq. 
The "spoils" system in appointments, 306. The "merit" 
system — its history and present condition, 306 et seq.; the 
various steps taken in this direction — constitutional pro- 
visions, 306; Act of Congress, 1853, 306; its inefficiency, 
307; the "spoils" system during the civil war period, 307; 
the act of 1871, 307; the "civil service Act" of 1883, 308- 
310. The "merit system" in the great cities, 310-311. 

CHAPTER XIII. 

MODIFICATIONS OF LAW AS A RESULT OF POPU- 
LAR CO-OPERATION— RELATIVE TO THE EXER- 
CISE OF THE OTHER FUNCTIONS OF GOVERN- 
MENT. 

The evolution relative to executive and judiciary prior to the 
adoption of the National Constitution, 312. The neces- 
sity for adaptations relative to the Legislature, 312-313. 
Provisions made to protect the people against the arbi- 
trary use of legislative power. 

I. As to the manner of exercise, p. 313-320. Procedure pre- 
scribed by constitutions, 313; constitutional means of se- 
curing knowledge necessary for deliberation, 314; the or- 
der of business based on legislative precedent and rules, 
315; provisions for the exercise of veto-power, 316. Means 
adopted to prevent surprise, deception, fraud, etc., 316; 
to insure greater responsibility for acts, 319; that the pub- 
lic may have notice of legislative acts, 320. 

II. As to the subject matter of legislation, 320 et seq. — Ap- 
propriations, 321-324; taxation, 324-343; indebtedness, 343- 
345; corporations, 345-348; special, local and private laws, 
348-356. 

CHAPTER XIV. 

MODIFICATIONS OF PRIVATE LAW AS A RESULT 
OF POPULAR CO-OPERATION IN GOVERNMENT. 

I. Legislation relative to Capital and Labor, 352; status 
of the laborer in England, 353; effect of this environment 
on colonial legislation, 356; evolution during the colonial 
period, 356-359; evolution during the national period to 
i860, p. 359-363; legislation subsequent, 363-370; attitude 
of the courts, 370-374; conclusion, 374-375. 

II. Legislation relative to Debtor and Creditor, 375; laws 
of England from which our statutes were drawn, 375-376; 
early laws of the colonies, 377; evolution during the colo- 
nial period, 377; laws at the beginning of the national- 
period, 377-379; evolution during the national period, 379- 
385; changes in the policies of the law, 385; conclusions, 
385. 



CONTENTS. xv 



CHAPTER XV. 

PROBLEMS FOR THE DEMOCRACY OF TO-DAY, OR 
THE MODIFICATIONS STILL NECESSARY TO BE 
MADE. 

The dissatisfaction of the people, 386. The conditions present 
which make further adaptations necessary, 387. 

I. Incompetency in office, 388: — Cause — largely attributable to 
the progress of the age, 388; remedy for incompetency, 389; 
arguments used against the "merit system" of appoint- 
ments, 392; the fallacy of such arguments, 392-393. 

II. Inequality in elections, 394: — in the election of United 
States Senators, 395; in the election of Presidential elec- 
tors, 395-396; majority and machine rule in direct elec- 
tions, 398; remedies proposed — the plan of Mr. John- 
son of Ohio; 400; the plan proposed by the com- 
mittee of the American Proportional Representation 
League, 404; objections to these, 408; plan proposed to 
overcome these objections, 408-411. 

III. The spoils system in appointments, 412. 

IV. The corruption of our legislatures, 412; forms of cor- 
ruption, 412; (1) in the election of U. S. Senators, 412; 
(2) in the "gerrymander," 412-413; (3) in special legis- 
lation, 413; (4) in obtaining special grants of power and 
franchises to corporations, 413; (5) in the disposition of 
public property, 415; (6) in securing appropriations, 415; 
(7) in incurring indebtedness for public works and the 
letting of contracts, 419; (8) in laws for taxation, 419. 

V. The subversion of municipal government, 423; the first 
strategic point in the campaign for "spoils," 424; the con- 
trol of the exercise of the functions of government — 
the judiciary, 426; the legislative department, 427; should 
provide for two elements in organization — (1) should 
represent city at large; (2) should represent the various 
districts, 427; plan to secure this, 427; means of elevating 
the personnel of city government, 428; means of removing 
the inducements to corruption, 428-433; conclusion, 434. 

CHAPTER XVI. 

PROBLEMS ARISING FROM THE RECENT WAR. 

The interest of such an inquiry at the present time, 435; prob- 
lems arising from a condition of war, 435; new adjust- 
ment of popular thought and national activity made neces- 
sary, 435; in a democratic state this new adjustment re- 
quires an extraordinary stimulus, 435; owing to the new 
direction of national activity, war organization often be- 
comes more dangerous to the state after the war has 
ceased than during the struggle, 436; one of the greatest 



xvi CONTENTS. 

problems that a nation has to face is that of an economic 
readjustment after a war, 436; the present conditions for 
making this readjustment much more favorable than those 
of other wars in which we have been engaged, 437. Prob- 
lems arising from the fact of success in the present 
war, 439. The territorial policy of the United States, 439. 
The new territorial problems presented, 440. Territories 
involved in these problems, 440. Circumstances which 
gave rise to these problems, 441. Interference on the part 
of the United States, 442. The responsibilities of the 
United States as a result, 443. Possible ways of fulfilling 
these responsibilities, 444. The difficulties in the way of 
these plans, 444. The problems which confront us in case 
we undertake to establish good government in the new 
territories, 445. Our ability to meet these requirements, 
446. Questions to be answered in this relation, 447-455. 
Assumptions necessary to secure the establishment of good 
government and at the same time not to endanger our 
own institutions, 457. 

CHAPTER XVI. 

THE DUTIES OF CITIZENSHIP. 

The two aspects of the state — the legal or stable and 
the political or active, 459. Political activities involve 
agreement among the people, (1) as to the parts of the 
legal machinery out of order, (2) as to the particular 
change necessary, 459; the duties of citizenship pertain to 
the manner of bringing about this agreement, 460. The 
people the arbiter of political questions, 460; their first 
duty — the establishment and maintenance of high stand- 
ards of action, 460; their second duty — the determination 
of adverse conditions present, 460; (instruments at hand, 
461); their third duty — to answer the question "What are 
we to do about it?" 462; activities necessary to this end, 
462; the conflicts of interests involved, 463. The inde- 
pendent non-partisan association — its influence in mould- 
ing popular thought, 465; the duties of men of wealth and 
ability in this relation, 466; questions of first importance for 
non-partisan consideration, 467-470. The pessimism and 
fatalism prevalent in modern political thought, 470-471. 
Confidence in the ability of the people to adjust their in- 
stitutions to the general welfare, justified by experience, 
472. 



THE GROWTH OF DEMOCRACY. 



CHAPTER I. 

THE EVOLUTION OF THE MODERN STATE. 

In tracing the evolution of the state, the forces with 
which we have to deal are found in man — man controlled 
by certain wants, animated by certain desires, which he 
would satisfy. These wants and desires, largely the re- 
flex of environment, furnish the mainspring of human 
activity, their satisfaction the end toward which all volun- 
tary effort is directed. But in directing his effort to- 
ward the satisfaction of desire an important qualification 
appears; he would obtain this satisfaction at the least 
possible cost to himself. In the prolonged struggle for 
satisfaction of desire, by a process of human selection and 
invention, operating under "the law of advantage," or of 
greatest economy, social institutions have been evolved; 1 
and any attempt to study government, without taking 
these motives into account would be futile. Nor can we 



1 There are those who account for the existence of the family 
upon the "law of advantage." Lester F. Ward, for example, 
reasons that in human nature itself there are as many elements 
that would tend to drive men apart, cause them to destroy each 
other, as there are that would tend to bring them together; that 
human aggregation and the "social instinct" were the results of 
the greater advantage of co-operation. That this increased facil- 
ity to meet the conditions of life is the evolutionary foundation 
for the family and of the larger social organisms. Herbert 
Spencer (Sociology, Vol. II, § 440), says: "So long as members 
of the group do not combine their energies to achieve some 
common end or ends, there is little to keep them together. They 
are prevented from separating only when the wants of each are 
better satisfied by uniting his efforts with those of others than 
they would be if he acted alone. Co-operation, then, is at once 
that which cannot exist without society and that for which a so- 
ciety exists. 

? 



8 THE GROWTH OF DEMOCRACY. 

regard the evolution of popular co-operation in govern- 
ment in the United States as a separate movement. It is 
only a small part of a general process; a single link in a 
long chain of events. 

Taking a general view of the historic development of 
government, from the standpoint of "the law of advan- 
tage," we find at the very inception two essentially differ- 
ent principles of organization. On the one hand may be 
found such institutions as the Village Community of In- 
dia and the East, the agricultural and pastoral society of 
the south, the Township of the Teuton and the West, and 
among them examples of local self-government as com- 
plete and effective as those which are retained and 
jealously guarded by us to-day. As far back as history 
carries us, in India, in Russia, in Africa, in Germany and 
in England are found organized communities, holding 
their lands or other property in common as a brother- 
hood, dividing the occupation and the products of the 
soil by established law and custom, carrying on their in- 
dustry and managing the affairs of the community in an 
orderly fashion by means of a popular assembly, a town 
council or representative head. The economic basis of 
this form of organization was industry — the cultivation 
of the soil, the tending of flocks and herds. The inter- 
ests of such a community demanded orderly co-operation 
and equitable divisions of the products. The political 
system evolved was the social product of these interests. 

On the other hand, another significant fact appears. 
Associated with self-government we find the principle of 
sovereignty. Its history is one of conquest. Animated 
by the same desire to satisfy their wants, the hill tribes 
organized their forces and sallied forth into the fertile 
plains of India, despoiling the agricultural communities 
and making the people slaves. 2 Here, then, in one so- 

2 The birth-place of the human family, it is thought, was in 
some tropical or semi-tropical portion of the earth where condi- 



. EVOLUTION OF THE STATE. 9 

ciety we have both conqueror and conquered, master and 
slave, and with the new condition rise up new institu- 
tions based on the principles of conquest. 

The purpose of industrial organization is to gain a 
mastery over nature and to make it subservient to the 
wants of man. Invention, industrial education, the arts, 
association and co-operation are all directed toward that 
end. The purpose or economic principle underlying the 
predatory organization has been to gain a mastery over 



tions for life were most favorable. Having no shelter, no im- 
plements, and possessing a low order of intelligence, the human 
could not survive a rigorous climate. Assuming that such was 
the case, it must have been much easier for the individuals living 
in tropical and highly productive parts to pick dates, cocoanuts, 
etc., than for them to pursue the chase or organize themselves 
into bands to fight for the goods which had been obtained by 
others. But as population increased it must have crowded on 
the natural supplies of the more highly productive parts. As a 
result the advantages of cultivation would be discovered, imple- 
ments invented, and the less productive areas would be grad- 
ually brought within the range of habitation. By slow process 
of adaptation those places where the soil was well suited to a 
yield of fruit and grain would be devoted to cultivation, those 
regions where the soil was not readily responsive to agricul- 
tural labor, but which supported numbers of grazing animals, 
would be occupied by a pastoral group; and those regions in 
which neither of these conditions prevailed, which were rough 
and wooded and inhabited by wild birds and animals would 
be peopled by those who lived by the chase. It is highly 
probable that, from necessity, under all forms of employment, 
men sought to obtain the means of satisfying desire at the least 
possible expense of energy; that this not only accounts for 
early differentiation in the forms of activity, but also led to con- 
flict. In many tribes the people are known to have followed a 
variety of employments; as, for example, the ancient Teutons 
or some of the North American Indians. It very commonly hap- 
pened among these that the women and children would at- 
tend to such agriculture as they had and watch the herd, while 
the men pursued the chase. It is thought that it was through 
this form of industrial co-operation that the war organization 
was worked out. The men hunting in bands would come in 
conflict with hunters from other tribes, or coming upon a set- 
tlement possessed of the things desired by them, all of the men 
of the one trjbe would organize a band for conquest, and the 
people of another tribe, together with their goods, would come 
to be regarded as a higher form of chase than the animals of 
the forest. 



10 THE GROWTH OF DEMOCRACY. 

men — men as industrial agents — as a means of satisfying 
desire out of the labor and skill of others. 3 

The polity of the local industrial organization has been 
that of local self-government. Organized for the pur- 
pose of establishing an order of things most advan- 
tageous to the various members of the community in the 
exercise of their productive energies, 4 its primary aim 
has been harmony, co-operation, general weal. It has 
been democratic or representative — responsive to the 
public will. The polity established by the predatory or- 
ganization has been that of military rule, monarchy, ab- 
solutism. Its aim has been the development of the 
greatest amount of fighting force, as a means of over- 
coming others and obtaining the products of their indus- 
try. It has assumed for the conqueror superiority, nobil- 
ity, deification, sovereignty; it has assumed for the sov- 
ereign a primary right to the. soil and absolute power 
over his subjects; it has reared up the fictions of the 
divine right of kings, hereditary succession, feudal ten- 
ure, eminent domain, monopoly, slavery. 



3 "The history of the human race is one long story of at- 
tempts by certain persons and classes to obtain control of the 
power of the state so as to win earthly gratifications at the ex- 
pense of others. * * * * The capital which, as we have 
seen, is the condition of all welfare on earth, the fortification of 
existence and the means of growth, is an object of cupidity. 
Some want to get it without paying the price of industry and 
economy. In ancient times they made use of force. They or- 
ganized bands of robbers. They plundered laborers and mer- 
chants. Chief of all, however, they found that means of rob- 
bery which consisted in gaining control of the civil organiza- 
tion—the state — and using its poetry and romance as a glamour 
under cover of which they made robbery lawful. They devel- 
oped high-spun theories of nationality, patriotism, and loyalty. 
They took all the rank, glory, power and prestige of the great 
civil organization and they took all the rights. They threw on 
others the burdens and the duties." 

William Sumner Graham, in "What Social Classes Owe to 
Each Other," p. 101. 
See also Cooley, Cons. Law, Ch. X, § 295 

4 To them and their purpose orderly and equitable co-opera- 
tion was most advantageous. 



EVOLUTION OF THE STATE. 11 

It has been between these two forms of organization 
that the contest has been waged; the one having for its 
prime purpose the obtaining of satisfaction through in- 
dustry, the other through conquest or spoliation ; the one 
group seeking to establish a polity in aid of production, 
the other to build up a polity in aid of predation and as 
a guaranty to spoils. 5 Whether living apart in different 
tribes, or occupying the same territory under the same 
government the one subordinate to the other, the rule of 
might has always been the test of fitness to control and 
survive. That group has dominated, that polity been 
maintained, under which the people have been able 
to develop or foster the development of the greatest 
amount of material force, and amass and direct it toward 
a given end. For this local self-government did not 
make adequate provision; and isolated, localized indus- 
try was not the condition best adapted to success. The 
small isolated political community did not provide for 
the most economic production and its resources were not 



5 Very commonly we find different individuals and different 
communities organized and acting according to the one princi- 
ple at one time and the other principle at another. There are 
many examples of peoples who, acting as an industrial com- 
munity, engaged in co-operative production during a part of the 
year, the summer, and as a predatory community during the 
other part, the winter. In such cases the form of organiza- 
tion employed for the productive activities was usually differ- 
ent from that employed for the predatory activities. After the 
conquest of a people the form of organization was usually 
changed in such a manner as to subordinate the captured to the 
captors and utilize them as slaves in industrial employment; then 
the industrial processes are conducted under a predatory regime 
and by force instead of by agreement and consent; the mili- 
tary forces control the government. It often happens that 
the same individual, at different times, in different relations, 
acts under both of these forms of organization. One may in 
his dealings of one kind act under an organization having co- 
operative production for its principle, and in his dealings of 
another kind act with an organization purely predatory, having 
for its object spoils. The Vikings furnish a striking example of 
this kind. So, too, we might say that the members of Tam- 
many Hall present much the same aspect. 



12 THE GROWTH OF DEMOCRACY. 

adequate for defense. The most profitable production 
can only be attained by a wide co-operation and division 
of labor. Extensive organization is as advantageous to 
economic production as it is necessary to successful war- 
fare. We therefore find that localized industry and local 
self-government, in the struggle for supremacy, have 
uniformly succumbed to the broader organization of con- 
quest. Primitive industry has been made a slave to the 
higher powers of absolutism. 

Absolutism, however, is self-limiting. As its acquisi- 
tions have been made by force, its assumptions must be 
maintained by force. Its polity must be such as to se- 
cure to it the spoils of conquest. Territorial sovereignty 
must be maintained; to that end the domain is appor- 
tioned among the military leaders. The prime object be- 
ing spoils, the conquered having been despoiled and en- 
slaved, supremacy must be maintained as a means of 
further enjoyment — therefore the fictions of tenantry, 
serfdom, and slavery. But while the prowess of the 
predatory group of society must of necessity be greater 
than that of the localized industrial group which it has 
conquered, being parasitic in its nature, it cannot sap the 
life blood of the industrial body, upon which it feeds 
without depleting its own forces. Absolutism un- 
checked, will, in its very nature, destroy itself. The 
members of society must live and the resources of war 
be at hand. For the purposes of the predatory group, 
therefore, it becomes necessary both to foster industry, 
to allow it to grow strong, and at the same time to con- 
trol it. 6 The limitations of absolutism are both from 
within and from without. From within it is limited by 
the economic necessities of the predatory group on the 
one hand, and by the danger of uprising among the in- 



c Owing to its economic advantage local self-government has 
often been retained as a primordial structure, but made subser- 
vient to the more general polity of conquest. 



EVOLUTION OF THE STATE. 13 

dustrial on the other; from without it is confronted by 
other predatory groups. It must maintain itself against 
all or succumb. These self-limiting qualities, by opera- 
tion of the law of advantage, in the economic struggle, 
have broken down the fictions and assumptions of abso- 
lutism. The evolutionary result of the contest between 
these two groups has been the development of a broader 
and superior, polity, 7 including the best principles of both 
and adapting them to the highest economic interests of 
society — a polity based on the general welfare. 8 

The struggle had been carried on many centuries be- 
fore this broader and superior polity was evolved. In 
Asia, industrial progress had become paralyzed by abso- 
lutism; local self-government had become so stereotyped 
by custom and caste that the struggle of the industrial 
classes had almost ceased. At an early period the fic- 
tions of absolutism were woven around them till cen- 
tury after century rolled by and in humble subservience 
they labored, thinking that by submission they were 
doing the will of the gods. Religion, superstition and 
philosophy had been employed to lull the industrial peo- 



7 The modern state is equally indebted to both the polity of 
conquest and of local industrial co-operation for its leading prin- 
ciples. To the first, the principle of sovereignty as found in 
the broader political organizations, to the latter the principles 
of self-government and co-operation based on consent. 

8 Knowledge of the miseries which have for countless ages 
been everywhere caused by the antagonisms of society must not 
prevent us from recognizing the all-important part these antag- 
onisms have played in civilization. Shudder as we must at the 
cannibalism which all over the world in early days was the con- 
sequence of war — shrink as we may from the thoughts of those 
immolations of prisoners which have, tens of thousands of times, 
followed battles between wild tribes — read as we do with horror 
of the pyramids of heads and the whitening bones of slain peo- 
ple left by barbarian invaders — hate as we ought, the militant 
spirit which is even now among ourselves prompting base 
treacheries and brutal aggressions; we must not let our feel- 
ings blind us to the proofs that inter-social conflicts have fur- 
thered the development of social structures. — Spencer, Prin. Soc, 
II (3d ed.), p. 231, 



14 THE GROWTH OF DEMOCRACY. 

pie into quiet and fix upon them the blight of political 
and industrial servility. Here we find a most highly re- 
fined form of absolutism; a nation that can boast an an- 
cient civilization, well cultured in learning and the arts, 
its rulers the recipients of the products of industry, 9 the 
people sober and industrious, their willing slaves. Al- 



9 By the law of Mum taxes may be collected as follows: 

1. A military king who takes even a fourth part of the crops 
of his realm at a time of urgent necessity, as of war or inva- 
sion, and protects his people to the utmost of his power, com- 
mits no sin. Mum., Ch. VII., p. 118. 

2. The tax on the mercantile class, which in times of prosper- 
ity must be only a twelfth part of their crops and a fiftieth of 
their personal profits, may be an eighth of their crops in time 
of distress, or a sixth, which is the medium, or even a fourth in 
great public adversity; but a twentieth of their gains on money 
and other movables is the highest tax. Id., p. 120. 

3. Serving men, artisans and mechanics, must assist by their 
labor, but at no time pay taxes. Id., 120. 

4. Having ascertained the rules of purchase and sale, the 
length of the way, the expenses of food and of condiments, the 
charges of securing goods carried, and the net profits of trade, 
let the king oblige traders to pay taxes on their salable commod- 
ities; after full consideration let a king so levy those taxes con- 
tinually in his dominions that both he and the merchant may re- 
ceive a just compensation. Id., p. 127, 128. 

5. Of grain an eighth part, a sixth or a twelfth as may be 
taken by the king. Laws of Mum, Ch. VII, 130. 

6. Of cattle, of gems, of gold and silver added each year to 
the capital stock, a fiftieth part may be taken by the king. Id., 
J 30. 

7. He may also take a sixth part of the clear annual increase 
of trees, flesh, meat, honey, clarified butter, perfumes, medical 
substances, liquids, flowers, roots, and fruits, of gathered leaves, 
pot herbs, grass, utensils made of leather or cane, earthen pots, 
and all things made of stone. Id., p. 131. 

8. Let the king order a mere trifle to be paid in the name of 
the annual tax by the meaner inhabitants of his realm who sub- 
sist by petty traffic. Id., 137. 

9. By law handicrafts men, artificers and servile men, who 
support themselves by labor, the king may cause work to be done 
for a day each month. Id., 138. 

At Smorbhulpoor, in 1766, when the natives relinquished the 
government to Great Britain, the rajah or king took one-fourth. 
Mill, Vol. I. p. 215, Note 1. 

In Bengal, according to Dr. Buchanan, after taking out 
about 5*4 per cent, for various purposes, and 10 per cent, for 



EVOLUTION OF THE STATE. 15 

though the institutions of caste and the fictions of ab- 
solutism formed an extraordinary protection to the rul- 
ing classes against dangers from within, the pessimism 
and despotism of the East so weakened their resources 
that they were impotent to protect themselves from dan- 
gers from without, and Asia became the field of conquest 
for the more sturdy and free nations of the West. 10 

Greece, at one time the patron of industry, had devel- 
oped remarkable forces. But its rulers were conquerors 
averse to industrial engagement, 11 living by despoiling 
the conquered. With wealth came the blight of abso- 
lutism and of social effeminacy. With its population 
largely composed of impoverished freemen and slaves, its 
industry palsied and its people divided against them- 
selves, Greece first fell prey to the greater military 
prowess of Macedonia, and later to the stronger powers 
of Rome. 

But Rome, like Greece, was depleted by its own gov- 
ernors. Its resources were wasted; its industrial class 
was crushed by monopoly and misrule. It could not 
rally against the invasions of the Teutons. Rome fell a 
victim to its own weakness and the virility of the North. 

However much the fall of the Roman Empire may be 
deplored it marks the advent of a new epoch. The su- 



the collection of revenue, as his part, the remainder of grain is 
divided between cultivator and king. Mill, p. 216, 1. 

The exactions in India by way of tax rate under ancient law 
and custom may be understood by reference to. the reports to 
the House of Commons in East India affairs. In some cases 
reported the government took such a large share of produce 
that it was necessary to return seed for the next year. 

10 Maine's Village Communities, p. 124. 

11 "The citizens who governed the state were generally a privi- 
leged and comparatively small class of the whole community. 
They enjoyed the franchises by right of birth or property: they 
were proprietors of the soil: according to the social habits of the 
ancient world they scorned manual labor as dishonorable and 
gave up all handicrafts and agriculture to their slaves. Jealous 
of their privileges, they excluded strangers and settlers from 
the franchise; and the slaves, who formed the entire working 



16 THE GROWTH OF DEMOCRACY. 

premacy of the military state was gone. Imperialism 
had been its own executioner ; it had collapsed from self- 
indulgence. Absolutism had fallen prey to its own eco- 
nomic limitations. The great rubric of the Roman pred- 
atory state had fallen and out of its ruins arose a 
grander, a more powerful structure — the modern indus- 
trial state. 12 With the fall of Rome and the establish- 
ment of feudalism the lines of battle assumed a new 
front. The contest was now waged between castle and 
crown. During the Dark Ages, when lords and retainers 
were warring with each other and feudal barons were, 
doing battle with kings, the industrial classes were gath- 
ering force which was destined finally to destroy both 
lord and monarch and to establish a government sub- 
servient to the interests of society at large. This stronger 
political organism had its germ in the mediaeval city. 
The weakness of the monarch and the independence of 
the feudal lord were conditions favorable to its growth. 
The fall of Rome left the empire in a state of anarchy. 
The monarch being weak, the people, either by their 
own seeking, 13 or by subjugation, fell under the protec- 
tion and domination of the feudal lord. These lords, or 
barons, were free to plunder whom they would, except 
in so far as they were restrained by other lords or the as- 
sociation of armed citizens in the towns. 



class, were naturally denied any share of political power." 
I May's European Dem., 58. 

12 The phrase "industrial state" as here used signifies a social 
state organized politically with reference to the industrial wel- 
fare of its members. 

"There is this essential difference between the spirit and 
life of ancient and modern communities, that the former were 
organized for war, the latter during their whole history have 
increasingly tended to be organized for industry, as their prac- 
tical end and aim. The profound influence of these differing 
conditions on every form of human activity must never be 
overlooked or forgotten." Ingram. History of Pol. Econ. (N. 
Y. Ed. 1894) p. 9. 

13 That is by process of commendation or some similar ar- 
rangement. 



EVOLUTION OF THE STATE. 17 

The towns were of two kinds — those that had been 
established during the empire and had escaped destruc- 
tion, and those which had grown up under the feudal 
regime. It was the former that first gained independ- 
ence from the domination of feudalism. The Italian 
cities, richer and more populous than those in other 
lands, early became the centers of industry. Feeling the 
necessity of protecting themselves against invasion, they 
organized citizen militia, by means of which they were 
able to withstand the comparatively small military forces 
of the barons. The imperial structure having gone to 
decay, the government resolved itself into its primordial 
elements. The several towns that remained after the fall 
of the empire still held to the Roman model which, 
though not well suited to the government of a nation, 
was well adapted to local self-government. 

All of their institutions were republican, founded upon 
popular election and public confidence. These institu- 
tions varied in different cities; but they were so far alike 
as to admit of a general description, more or less applic- 
able to them all. 

All citizens capable of bearing arms were summoned 
by the sound of the great bell of the city belfry. They 
assembled in the public place, where, following the tra- 
dition of the Roman republic, they elected two or more 
consuls every year, to administer justice within the city 
and to lead forth the trained forces to battle. This pop- 
ular assembly, in very early times, acquired the name of 
Parliament. The municipal constitution of these cities 
was wholly republican. The consuls were assisted by a 
secret council, generally known as the credenza, and by a 
great council of the people or senate, consisting of one 
hundred citizens, both nominated by the Parliament. The 
smaller body administered the finances and superintend- 
ed the public works, which still bear witness to the mu- 
nificence, public spirit and taste of the Italian citizens of 
the tenth, eleventh and twelfth centuries. The popular 
council discussed the greater public affairs and pre- 
2 



18 THE GROWTH OF DEMOCRACY. 

pared laws for the ratification of the Parliament. 14 * * 
Within their own cities they combined for the com- 
mon good, and beyond their walls they were long able to 
resist the monarchs and feudal lords who coveted their 
wealth and were jealous of their greatness. By respect 
for the law and protection of property — almost unknown 
elsewhere — these cities advanced rapidly in population 
and prosperity. In the country no man was safe from 
robber-nobles; within the city walls law and order were 
maintained by the popular magistrates. The lawless 
violence of the powerful was restrained, and the lowly 
were protected. If the strong resisted the law, the 
magistrates were assisted by all the citizens of the repub- 
lic in enforcing obedience and punishing the offender. 15 

In the twelfth century there were no less than two 
hundred of these free cities in Italy. In the absence of 
a broad military organization, these self-governing urban 
communities were able to protect the industrial welfare 
of their citizens and they attained a greatness in wealth 
and culture such as was unknown to other parts of the 
world. The merchants of Genoa, Pisa, Florence and 
Venice supplied Europe with the products of the Medi- 
terranean and the East; the bankers of Lombardy in- 
structed the world in the mysteries of finance and foreign 
exchange; Italian artificers taught the workmen of other 
countries the highest skill in the manufacture of steel, 
iron, bronze, silk, glass, porcelain and jewelry. Not 
only did the industrial and intellectual attainment of the 
cities give evidence of the superiority of their institu- 
tions, but, the feudal barons having been stayed, agricul- 
ture flourished within the radius of their influence. 16 



14 This was very similar to the early government of some of 
the New England colonies. 

15 May's "Democracy in Europe,'*' Vol. I, p. 289. 

16 "So skillful was the agriculture of Lombardy and Tuscanv 
that after a lapse of five centuries it is affirmed that the lands 
formerly comprised in the territories of these republics can be 
distinguished from those which continued under the sway of 
the feudal lords — the former being improved by embankments, 



EVOLUTION OF THE STATE. 19 

The beneficent results of the protection which the old 
Roman cities furnished to industrial organization, how- 
ever, has not been confined to Italy. Progress toward 
the establishment of a polity favorable to the industrial 
welfare of society was made in other lands. In Spain 
and Portugal, as well as in Italy, the modified Roman 
city became the center of industrial freedom. In the 
fourteenth and fifteenth centuries the Spaniards and Por- 
tuguese led the world in the arts, in geographical discov- 
ery, in commercial adventure, in all that makes a nation 
great. 

The other class of mediaeval towns, those which grew 
up under feudal regime, though they accomplished the 
same political result after the fall of Rome, they had quite 
a different history. Generally speaking, the inhabitants 
were traders, artificers, villeins and serfs. Often these 
towns had their beginning as a small community of those 
who labored for their lord in the various occupations 
necessary for his pleasure, protection and well-being. 
They plied their trades in the interest of their masters or 
by sufferance, paying heavy tolls, fines, etc., for every 
privilege. These communities, however, were essential 
to the lord. The many petty chiefs warring with each 
other were as dependent on the tradesmen and serfs for 
sustenance and the means of carrying on war as the 
tradesmen and serfs were dependent on them for protec- 
tion. It was not as if all political power was organized 
under and centered in one military head, as at Rome, 
but the thousands of smaller leaders, warring with each 
other and with the monarch, gave opportunity for the 
evolution of stronger organisms. The law of the sur- 
vival of the fittest, acting among these many contending 
political organisms, made it necessary to use every re- 



irrigation, and the appliances of science and capital, the latter 
displaying the usual results of ignorance and neglect." — May, 
I, p. 292. 



20 THE GROWTH OF DEMOCRACY. 

source to greatest advantage in order to survive. In 
the struggle that form of organization which provided 
the conditions for the development and maintenance of 
the greatest strength by the stern arbitrament of war 
was deemed fittest. This form made provision not only 
for the assertion of the greatest military force but also 
for the highest industrial welfare. The feudal organiza- 
tion provided for military protection; industrial freedom 
was obtained through a series of "freedoms" — i. e., 
licenses granted or practices allowed by those in control, 
whereby the industrial people were freed from exactions 
and allowed to conduct their own affairs by a system of 
local self-government, exercised under contract or by 
consent of baron or sovereign. 

In England, for example, it would appear from the 
evidence at hand that the first form of freedoms were 
by sufferance, respect being had for custom. To usage 
were added certain specific grants in the nature of com- 
position for tolls, fines and other forms of precarious 
tribute levied or exacted by the lord or sovereign; thus 
the privileges and liberties established by custom grew. 
The inhabitants having been, originally, "tenants or de- 
pendents of the king, or some particular nobleman on 
whose demesne they resided," their superiors had ex- 
acted from them not only rent for the lands but also 
various tolls and duties for goods made or exchanged. 
As attempts were often made at evasion, on the one 
hand, and oppressive exactions were resorted to in the 
collection of these tolls and duties, on the other, the in- 
habitants of the town were constrained to make a bar- 
gain by which they undertook to pay certain annual fees 
in lieu of the various other demands. These composi- 
tions having been found advantageous to both parties, 
they were continued and finally made perpetual. 17 After 

17 See Kyd, Vol. I, p. 42-3, Ed. 1795. Various forms of 
license, on charter, to mediaeval towns are set forth by Gross 



EVOLUTION OF THE STATE. 21 

the composition of fines had been granted, certain po- 
litical privileges, or "freedoms," such as the holding of 
courts, government by a representative council, etc., 
were gradually added. The government of the feudal 
town gradually assumed a local autonomous character 
under forms similar to the Italian free cities and the 
modern municipal corporation. But this local political 
organism became a part of the broader political whole to 
which it contributed a tax as compensation for the pro- 
tection given against political forces from without. 18 

A second important feature, one that played a larger 
part in the life of the mediaeval city, one to which we are 
largely indebted for our modern political institutions, 
was the gild (or guild). This was a voluntary and, at 

in his gild merchant. Typical among these, and one that he 
himself takes as a type is that of Ipswich, Eng., a part of 
which is as follows: "John by the grace of God King, etc., 
know ye that we have granted, and by our present charter con- 
firmed, to our burgesses of Ipswich, our borough of Ipswich 
with all of its appurtenances and its liberties and free cus- 
toms, to be held of us and our heirs by them, and their heirs 
heriditarily, paying annually at our Exchequer the right and 
customary ferm at Michaelmas term, by the hand of the pro- 
vost of Ipswich and a hundred shillings of increment at the 
same term, which they were accustomed to pay. We have 
also granted to them that the Burgesses of Ipswich may be 
quit of toll and stallage, lastage, passage, pontage, and all 
other customs throughout our whole land, and in our seaports." 
(Gross, Vol. I, p. 7. See also appendix to Vol. I and the 
Charters set forth in Vol. II). In this the "freedoms" from 
various ancient forms of tribute and their commutation to an 
annual tax or duty is the principal element. 

18 Many of the European towns went so far as to throw off 
entirely the authority of the superios, to raise up armies to 
defend themselves from foreign enemies and become a complete 
government within themselves. But this proved a failure. While 
they might by this means provide against the exaction of supe- 
riors they ignored one of the conditions of success in the struggle 
for existence. The advantage was always with those which had 
a broader organization, provided that the broader organization 
was not parasitic. It was only by alliance of the free cities 
that they could withstand the forces which pressed upon them. 
But alliance either led to internal contention or matured into 
a broader government. The struggle between nations was the 
condition which compelled the evolution of the broader polity, 
a polity which had regard for the welfare of its subjects, 



%k THE GROWTH OF DEMOCRACY. 

first, private association among the industrial classes, 
having for its object the protection of the economic in- 
terests of its members — the merchants and craftsmen of 
the town and surrounding country. These voluntary as- 
sociations gradually came to form a recognized part of 
the city government; and by license, either from the city 
council, the lord, or sovereign, they were allowed to con- 
trol the industrial affairs of the city, provide trade regu- 
lations, etc. The organization of guilds and their 
ultimate incorporation into the city government prac- 
tically placed the control of the municipality in the hands 
of the industrial people. 19 

Still another form of organization growing out of vol- 
untary association might be mentioned in this relation, 
viz., that of the private corporation. This seems to have 
had its beginning and to owe its peculiar qualities to 
much the same course of events. In the general conflict 
between monarch and nobility, the communities, organ- 
ized as towns, had obtained freedom from pillage or ex- 
action, this license having been granted by king or baron 
in return for pledges of needed support or stipulated rev- 
enue. In the same manner the merchants or craftsmen 
had obtained license against interference with their trade, 
and finally had had certain privileges of regulation con- 
ferred upon them. Under these licenses, and the broader 
sovereignty which the monarch had been able to estab- 
lish, the industrial organization broadened. Those who 
had theretofore fabricated their own articles, or culti- 
vated their own produce, and then went into the market 
to exchange them, found it more advantageous to spe- 
cialize, and the industrial community became differen- 
tiated in its functions. The guild organization followed 
the same course. Instead of there being one guild mer- 
chant, there came to be many craft guilds in a single 

19 See Gross, "The Gild Merchant;" Von Maurer, "Stadt- 
verf;" von Below, "Stadt gemeinde." 



EVOLUTION OF THE STATE. 23 

town, each having in mind the protection of particular 
interests. Still the industrial interests broadened, and it 
became advantageous to extend commercial and indus- 
trial operations so far that the guild associations could 
no longer serve the purpose. The private corporation 
seems to have been a product of this industrial growth. 
But in order to co-operate to advantage in this new re- 
lation it became necessary to procure freedom or license 
from those in control that the organization might not be 
hampered by exaction and damaging restriction. For 
example, a number of persons might wish to combine a 
certain part of their property for the purpose of mutual 
benefit and co-operative action. The most advantage- 
ous way of treating this property would be as a common 
fund. If, however, a part of the property were land it 
was subject to the feudal burdens of wardship, escheat, 
relief, non-entry, military service, etc., which if the land 
were held by a corporate body would be lost to the sov- 
ereign. In England an adjustment seems to have been 
made under the form of a "license in mort main." By 
this device the "captains of industry" were enabled to re- 
lieve themselves from these feudal burdens and disabil- 
ities, and the king to swell his revenues by composition 
in a fixed sum. In other words, the prospective rev- 
enues to be derived by the crown from the "feudal casual- 
ties" were commuted to a fixed sum agreed upon by the 
parties. This was one of the means by which revenue 
was procured by the crown and a license for broader and 
more advantageous organization was obtained by the in- 
dustrial body. 20 The result was the breaking down of a 
certain part of the feudal regime in the interest of the 
general welfare. 

Through these various forms of organization the mod- 



20 In other parts of Europe the process took on another form 
and name but the organization seems to have had the same 
economic basis. 



24 THE GROWTH OF DEMOCRACY. 

ern state seems to have risen. By freedom from pillage 
and exaction, secured to the municipality, the conditions 
were present for profitable production ; by freedom from 
restraint secured to the guilds, co-operation was en- 
larged; by freedom from certain feudal burdens, and 
grants of advantage, secured to the private corporation, 
the industrial organization reached out till it became 
coterminous with the jurisdiction of the sovereign. 
These forms of organization, based on contract (or com- 
pact), 21 may be regarded as a new foundation for the 
state. The whole social and political system became 
shifted from one of conquest and force to one of contract 
and consent. Then, also, it was through these various 
forms of co-operative action that the people learned to 
govern themselves. It is in these "communities of in- 
terest" that the principle of representation took its root 
and expanded until it came to include the broad political 
community. As the community of interest broadens 
and extends beyond the political jurisdiction of the state 
there is a tendency to enlarge the political organization 
in order that the economic interests of the people may be 
better protected. The modern state is a cloak which is 
put on by the industrial organization. The foundation 
is industrial, the superstructure in part political. In the 
ancient state, founded upon conquest, this was not the 
case. The Middle Ages was the period of transforma- 
tion. 

But we have so far portrayed only one side of the evo- 
lution — the condition of broader industrial organization 
as a basis for the modern state. The contest between 
the different forms of political organization, and the evo- 
lution of a broader sovereignty, furnishes an interesting 

21 These contracts were in the nature of agreements, tacit 
or express, between the various industrial associations and the 
crown or other agent of the government. The charter, the 
license, the "ancient liberty," were some of the forms in which 
they appear. 



EVOLUTION OF THE STATE. 25 

chapter. During the feudal reign, when the principle of 
monarchy was not well established, the forces of the 
isolated barons had been too weak either to overcome 
the free cities or obtain a permanent mastery over large 
territories. The contest between barons and monarch, 
which had been a condition favorable to the growth of 
the industrial organization, was gradually decided in 
favor of the latter; the cities by mutual concession were 
enlisted under his banners and the feudal barons were 
ultimately crushed. But the amassing of forces in the 
hands of a single sovereign well-nigh proved fatal. By 
accident of birth Charles V. of Spain became the rightful 
heir to the principal thrones of Europe. This circum- 
stance brought under his command such military forces 
that he was enabled to arbitrarily override the ancient 
rights and privileges of cities, provinces and states. 
Says May, 22 commenting on the reign of Charles: 

No monarchy of Europe had once been more free than 
that of Spain. In Castile and Aragon, and other Spanish 
kingdoms, the prerogative of the crown had been usually 
limited; and the Cortes were bold and independent Par- 
liaments. In Catalonia the people had deposed their 
sovereign, John II., and his posterity, as unworthy of the 
throne, and endeavored to establish a republic. In Cas- 
tile the nobles had deposed their king, Henry IV., with 
the general assent of the people. In Aragon the kings 
were originally elective; and it was an article of the con- 
stitution that if a king should violate the rights of the 
people it was lawful to dethrone him and elect another 
in his place. 23 The representatives of the cities held an 
important place in the Cortes, without whose consent no 
tax could be imposed, no war declared, nor peace con- 
cluded. The institutions of Castile were no less popular ; 
and in the Castilian Cortes, as in the English Parliament, 
it was an ancient custom to postpone the granting of 

22 May's Democracy in Europe, Vol. II, p. 28. 

9 - z This is the doctrine of impeachment as employed by us 
relative to our chief executive and which has been acted upon 
in England in the deposition of kings. 



26 THE GROWTH OF DEMOCRACY. 

supplies to the Crown, until grievances had been re- 
dressed and other business affecting the public welfare 
concluded. 24 Throughout Spain the cities had attained 
extraordinary social influence and political power. The 
nobles being exempt from taxation, it was to the cities 
that the kings were forced to apply for pecuniary aid; 
while they (the kings) were ready to grant privileges and 
immunities in return. 

But Castile had been debauched by the treacherous 
King Henry, 25 the predecessor of Isabella; other prov- 
inces had been torn by the intrigues of nobility and the 
profligacy of their monarchs. By the marriage of Ferdi- 
nand and Isabella, Castile and Aragon were joined; and 
in war the other hostile provinces were settled under 
their rule. Urged on by the religious fanaticism of the 
age, this power, concentrated in their hands, instead of 
being used to restore conditions of peace and profitable 
industry, was turned to a destructive crusade against all 
who would not acknowledge the established church. 
The murderous inquisition brought many high-minded 
and patriotic citizens to the block. The religious wars 
wasted the lives and resources of the people, the expul- 
sion of the Jews and Moors, deprived the state of some 
800,000 of its most intelligent and industrious citizens. 
Under Charles V. (First of Spain) grandson of Isabella, 
the political jurisdiction of the empire was widened so as 

24 This was a check on the royal prerogative, maintained 
by the people through their various local organizations and 
their representatives in the House of Commons that finally re- 
moulded the Constitution permanently limiting and prescrib- 
ing the powers of the crown and establishing a form of govern- 
ment based on the welfare of the people. 

25 "The character of Henry the Fourth has been sufficiently 
delineated; dismembered by faction, her revenues squandered 
on worthless parasites, the grossest violations of justice unre- 
dressed, public faith became a jest, the treasury bankrupt, the 
court a brothel, and private morals too loose and audacious 
to seek even the veil of hypocrisy. Never had the fortunes 
of the Kingdom (Castile) reached so low an ebb since the 
great Saracen invasion." Prescott's Ferdinand and Isabella, 
Vol. I, p. 138. (N. Y. Ed., 1873). 



EVOLUTION OF THE STATE. ^ 

to include half of civilized Europe. This circumstance 
strengthened the hand of absolutism. Inquisition and 
military force were the instruments by which Charles re- 
duced his subjects to submission and wrung from them 
their political rights and privileges. Though met by re- 
sistance, the military power of the combined states 
proved all too powerful. One after another, the cities 
and provinces were crushed and the people reduced to 
servility. Absolutism reached out till at last it came in 
conflict with the free cities of the Netherlands. For a 
time it seemed that these too would fall within its de- 
stroying power. Never since the fall of Rome had in- 
dustrial liberty been more seriously threatened. The 
polity of conquest and military rule under the broad or- 
ganization of Charles had asserted itself with such force 
that the smaller organisms of the south could not resist. 
In the Netherlands, however, Charles met with a more 
sturdy people — a people, well organized and well trained 
in the management of their political and industrial af- 
fairs, whose resources had not been depleted by a para- 
sitic nobility. For decades they resisted the army of 
Charles and later of Philip. This was a contest in which 
the two forms of political organization were put to a test. 
On the one hand was absolutism, by arbitrary rule sap- 
ping the resources of the people under its control. On 
the other was the polity of self-government and indus- 
trial co-operation. The one found Italy, Spain and Por- 
tugal the industrial center of the world. The local au- 
tonomy of their institutions was denied; the spirit of self- 
government was crushed; industry was discouraged; the 
people were murdered, pillaged and expatriated. The 
powerful resources which absolutism had found at hand 
were wasted and the empire depleted. The other found 
itself beset by a superior army. The Dutch free cities, 
single-handed, were, at first, no match for Charles, and 
had the latter maintained his resources at home they 



28 THE GROWTH OF DEMOCRACY. 

must ultimately have given way. But the superior 
forces from without compelled broader organization 
within; the confederation of the Dutch provinces in the 
Pacification of Ghent (1576) and the union of Utrecht 
(1579) was the result. By union they placed themselves 
in a condition to resist invasion, and industry, undis- 
turbed by forces from without, under a regime of self- 
government, not only sustained their armies in the field 
but at the same time added to the material wealth of the 
people. 

Throughout these trials, the sturdy citizens, masters 
of the sea, and trained to commerce and maritime enter- 
prise, had extended their ventures far and wide, and had 
grown in wealth and lucrative industry. The population 
was recruited by immigration from the less favored prov- 
inces. They had no democratic theories or sentiments, 
but in resisting tyranny they had become, by force of cir- 
cumstances, a republic ; and their robust spirit of freedom 
displayed itself in all the acts of the commonwealth. 
While the despotic Philip (the successor of Charles V.) 
with all his vast possessions was starving his soldiers 
and repudiating his debts, this brave little citizen-state 
was bringing model armies into the field, was sending 
forth its fleets to victory and its merchant ships to dis- 
cover new realms and to trade with the whole world. 
It was helping the Protestant cause in France with men 
and money, and was speeding its blunt, outspoken en- 
voys to the French king and English queen to com- 
bat, with truth and earnestness, the artful diplomacy of 
crowned heads. * * * Far different was the lot of 
the ill-fated provinces still in the grasp of the tyrant. 
The land lay waste and desolate; its inhabitants had fled 
to England or Holland or were reduced to want and 
beggary. 

Absolutism was at length forced to make peace with 
industrialism. The peace of Westphalia (1648) recog- 
nizing the independence of the Dutch Republic marks an 
important epoch in the history of the industrial state. Ab- 
solute power had been successfully resisted. The right of 



EVOLUTION OF THE STATE. 29 

a people to revolt against oppression had been recognized 
by crowned heads. The free Dutch cities, with their re- 
markable resources developed under an industrial polity, 
by confederation and wider co-operation had compelled 
the recognition of the principle of the general welfare as 
the basis of government. In the evolution of govern- 
ment the industrial state had demonstrated its fitness to 
survive. Soon after the Dutch Republic — a victim to the 
dissensions of its own military leaders under a regime of 
predation — began to decline; but the advantages gained 
by the conflict were not lost to the world. It had 
stopped the onward progress of imperialism; had broken 
the march of organized absolutism. After a century 
and a half of heroic struggle this small industrial repub- 
lic compelled the recognition of its independence. While 
the Dutch Republic later fell a prey to the dissensions 
of its own people and the predatory instincts of its mili- 
tary rulers, the powers of absolutism had been so wasted 
in the contest that the evolution went on. Thereafter 
we find the highest forms of political life in that other 
industrial nation that had combined with the Dutch in 
resisting the encroachments of the empire — in England. 
There, as in Holland, the environment was especially 
adapted to the development and final supremacy of an 
industrial polity. Nature had especially equipped her 
for the home a maritime and industrial people. Her in- 
sular condition, the peculiar indentures of her coast, her 
geographical position, fitted her for extensive commer- 
cial intercourse with other nations. While nature was 
here less lavish and therefore less favorable to idle lux- 
ury, the soil was fertile and responded liberally to the 
skillful touch of the husbandman. Her mineral wealth, 
greater than that of any other land of equal extent, lay 
deeply buried in the earth, encouraging, in fact com- 
pelling, a life of hardship and risk. The fruits of labor 
gained at such a cost would not be yielded up without a 



30 THE GROWTH OF DEMOCRACY. 

struggle. Though the victims of Roman, Pict, Angle 
and Saxon, Dane and Norman, through all the vicissi- 
tudes of conquest, the sturdy industrial people of the 
British Isles retained their local industrial polity. 

With the advent of the Normans the general govern- 
ment of England was organized on a predatory basis. 
Its polity was the polity of conquest, having the char- 
acter of absolutism. The Conqueror, having overrun 
the island with his military bands, had apportioned the 
soil among his colleagues or retained it for his own use. 
The chief maxim of government was: "The King is the 
source of all power and the fountain-head of justice." 
The government was made up of conquerors, or those in 
whom special privileges were conferred by the King. 
Such fictions as: "The King can do no wrong," divine 
right, absolute sovereignty and hereditary succession 
were among the legal notions and political concepts that 
had been established by rule of might for the perpetua- 
tion of special privileges gained in conquest. 

But the forces of absolutism were at once divided be- 
tween two estates. 26 The land and local jurisdictions 
having been apportioned among the military leaders, the 
interests of lords and king were opposed. A contest for 
authority ensued, and out of this contest a third estate 
arose. This third estate was from among the industrial 
classes. There, as on the continent, both parties found 
it necessary to have the resources of war and means of 
sustenance at hand. Both found it advantageous to pro- 
tect the industrial group. While the industrial commu- 
nity, organized in the cities and on the manor under 
systems of local self-government, were being fostered by 
lord and king, the people were being trained to wield the 



26 "Estate" is not used in the same sense in English history 
as in French. In England it is used rather to signify class. 
But this term being in common use it is retained here for 
convenience. 



EVOLUTION OF THE STATE. 31 

powers of state in their own behalf. The industrial lead- 
ers, having control of the material resources of the na- 
tion were enabled to impose limitations on both Lords 
and Crown. 

Prior to 1688 the Crown was constitutionally the dom- 
inant estate. Many were the contests that had been 
waged for the enlargement of the powers of the other two 
and the protection of their interests. Many were the 
struggles for a polity of equity and social well-being, and 
each time those who had thus asserted themselves had 
been either crushed by the weight of organized abso- 
lutism or, manifesting superior strength, had gained 
from the' dominant estate solemn promises and charter 
grants which had been as often violated, when circum- 
stances favored. Royal oaths proved to be only royal 
lies. And solemn grants were made the cause for royal 
vengeance. 27 In fact, the Crown was so powerful that 
England can scarcely be said to have had a constitution 
except such as abided in the will and act of the sovereign 
or in the people in revolution. 

By the establishment of 1688 the powers of govern- 
ment were divided among the three estates — Crown, 
Lords and Commons. 28 The powers and prerogatives of 

27 Among the charter grants and royal promises violated 
by the crown we may name the following: The charter of lib- 
erties, the two charters of Stephen, the charter of Henry II, 
the constitutions of Clarendon, the Magna Charter, the pro- 
visions of Oxford, the provisions of Westminster, the statute 
of Marlborough, the statute of Westminster, the confirmation of 
charters, and the Habeas Corpus Act. 

28 The commons were those leaders in the industrial field 
who, though not a part of the governing class under the old 
regime — having no title, and no relation with the crown ex- 
cept that of subject — had won for themselves a place by virtue 
of their having control over the industrial resources. Under 
the various forms of license and local privilege, they held 
the purse strings of the nation. In any attempt to raise revenue 
it was necessary to consult them. The House of Commons was 
first called together for this purpose. But before these revenues 
were granted certain grievances must be redressed. Thus they 
gradually came to take part in legislation and finally came to have 



32 THE GROWTH OF DEMOCRACY. 

the Crown were reduced and those of the Lords and 
Commons increased. The exercise of the sovereign func- 
tions was so apportioned among them that each estate 
became a constitutional check upon the other. There- 
after no one estate was strong enough to subvert the 
whole system in its own interest. The King controlled 
the Peers by his power of creation, whereby he might at 
any time dictate their action. The Peers and King nomi- 
nated a majority of the House of Commons and the 
Commons controlled the King by having the initiative 
in appropriations to sustain the government. This was 
a great step toward building up a system of modern con- 
stitutional government. The necessity for settled prin- 
ciples of organization, of an established plan such as 
would protect the rights of the estates, curbed the abso- 
lutism of the Crown and compelled the other estates to 
compromise their powers. 

But the constitution of 1688 fell far short of govern- 
ment for the governed. It was still predatory in its pur- 
pose and organization. It ignored the great fourth es- 
tate — the common people. It was not based on the 
principle of the welfare of the nation at large, but on the 
welfare of the three ruling estates. It was not a respon- 
sible government. 

The country had no constitutional control o/er the 
monarch nor over the House of Lords. It had not even 
a control over the House of Commons, although it was 
a house supposed to be representative of the nation. It 
was nominated, or at least a majority of its members 
were nominated, by the nobility. This was done openly, 
and the practice continued down to 1832. The country 
had no control over its meetings or its parting. The 
King could summon it when he pleased and dismiss it 



a recognized place in the government. Through the munici- 
pality, the guild, the private corporation, the interests of the 
leaders of industrial enterprise reached the general government 
in the House of Commons. 



EVOLUTION OF THE STATE. 33 

when he pleased. No pressure of public business, no 
public want, no emergency could give the people any. 
voice in the business. Even when the House of Com- 
mons met, the public had no control over the members. 
They could not recall them; they cannot do it even yet. 
They had to wait for three years and then for seven 
years before they could even change the members — that 
is, in the few cases in which the constituencies, such as 
they were, had the power to do so. Then for many long 
years the country had no opportunity of knowing what 
their representatives were doing. The debates and votes 
of the House of Commons were not allowed to be pub- 
lished. It was not till 1770 that the publication of pro- 
ceedings of Parliament was allowed. Meanwhile the 
members of the House of Commons, partly from the 
blandishments of royalty, partly from the bribes of min- 
isters and partly from their anomalous and irresponsible 
position, were a separate caste and no true representa- 
tives of the people at all. 29 
The government was still a close corporation. 30 

The spirit of self-interest which had dictated to the 
Crown a recognition of the Lords and Commons, which 
had in revolution established a constitution based on the 
equality of these three estates — an order of things in 
which none could obtain the mastery — demanded as to 
all others a polity of conquest, of inequality, of absolut- 
ism. This appears not only in the attitude of the gov- 
ernment toward the common people but also in its co- 
lonial policy. England's colonial polity was predatory. 
An imperial polity based on the general welfare of all 
parts of the imperial realm had not yet been evolved. 

29 Murdock, A History of Constitutional Reform, pp. 28. 

30 "In case it may be supposed that there is exaggeration 
in the indictment against the three estates under the new con- 
stitution," says Murdock further, (Constitutional Reform, pp. 
26) "it may be interesting, and perhaps profitable, to look into 
the Statute book and see how these early legislators spent their 
time after their inauguration into office." The author here sets 
out a long list of statutes adverse to the interests of the com- 

3 



34 THE GROWTH OF DEMOCRACY. 

It was not till after the Canadian revolt of 1837, after 
England had lost the thirteen colonies, and had a second 
colonial revolution on her hands, that the government 
was awakened to the necessity of a colonial polity based 
on the welfare of the colonies. The ideal of empire was 
that of making the conquered or annexed portions sub- 
servient to the central or conquering people. In Amer- 
ica the King indulged the fiction that, by virtue of a few 
voyages made by English sailors and adventurers, he be- 



mon people and favorable to the ruling estates. Continuing, 
he says: 

"Legislation of the above character began now (1810) to 
cease, as it was apparent that the country would not submit 
further. It had, indeed, gone very far — so far as to make the 
life of the workingmen of the country one of legalized oppres- 
sion. The specimens given are not all, nor nearly all, for it 
was in the administration of the laws where the despotism was 
chiefly felt. This was done in a pitiless manner. It was not 
uncommon to have a sentence of death pronounced for an of- 
fence which is now petty larceny. The punishments, especially 
for offences against property, were fearful, and the state of the 
prisons was enough to make one shudder. The number of 
taxes, too, and their vexatious character, bore with great severity 
on the masses of the people. Indeed it would seem to have 
been the delight of Parliament after Parliament from 1688 to 
1810, to do little else than sit, and raise and spend money, 
carry on war, and execute their cruel laws with all possible 
severity. 

"All this time there was no check on these estates of the 
realm. On a review of the legislation over the period from 
1688 to 1810 it would appear that there was a system of prop- 
erty being created, and a monopoly of government being pro- 
duced, which gave tremendous power and tremendous wealth 
to a class — that class the aristocracy, the old nobility, and those 
that elbowed themselves up to position. Of course there were 
the other two estates to be consulted and carried along with 
them. There was the monarch. He had to be largely sub- 
sidized; and when it came to the time of the prince-regent it 
was not easy subsidizing him. Then the Commons — at least 
a majority, and certainly the most prominent of them — had to 
be bribed. The corruption that was systematically carried on 
was on a large scale; it was not hidden but openly paraded 
and freely avowed and it was, times without number, charged 
against the ministry, in the House of Commons, without con- 
tradiction and without complaint. * * * The subsidizing of 
the monarch and the corruption of the Commons was the quid 
pro quo paid by the aristocracy for the constitutional privilege 
of plundering the nation." 



EVOLUTION OF THE STATE. 35 

came the owner and the Crown of England the rightful 
sovereign over a large part of the western continent. 
The Indians and all other inhabitants were regarded as 
holding this territory, not by first right, but by suffer- 
ance or a right of occupancy only. 

Why this assumption? Why its maintenance by an 
armed force? What is its economic advantage? The 
alert, self-centered Englishman had learned of this vast 
western continent, its probable riches, its wide expanse, 
its primitive people. To him it was a new field to be ex- 
ploited. That this end might be accomplished without 
interference on the part of his neighbors it became de- 
sirable to throw over it the mantle of British sovereignty. 
This assumption having been established, or being 
granted, it then became competent for the King, by his 
ipse dixit, to apportion the soil to his subjects, to grant 
special privileges and to delegate to others the exercise 
of sovereign rights. 31 

The powers of state, passing to the hands of the three 
estates, were still used to further the interests of the gov- 
ernors. At home the three estates governing, as be- 
tween themselves each interest served as a check on 
each other interest; but abroad, in dealing with people 
whose organized forces were too weak to resist, that 
overpowering desire for satisfaction which had served as 
a safeguard to industrial interests in England became a 



31 What more significant comment on England's foreign policy 
than the opening lines of Mill's great work? (The History of 
British India, Vol. I, p. i). With all the proverbial pride of 
an Englishman he announces: "Two centuries have elapsed 
since a few British merchants humbly solicited permission of 
the Indian princes to traffic in their dominions. The British 
power at the present time embraces nearLy the whole of that 
vast region which extends from Cape Comorin to the Moun- 
tains of Thibet and from the mouths of the Brahmapootra to the 
Indus." These two vain-glorious sentences mark the begin- 
ning and the end of the history of one of the most perfidious 
conquests, in the interests of corporate co~mmercialism, thai; 
the world has ever known. 



36 THE GROWTH OF DEMOCRACY. 

motive of oppression. The rights and properties of 
others were regarded as legitimate prey, and all of the 
energies of the state were used to further the interests 
of grasping commercialism. 32 

Such were the first assumptions of colonial govern- 
ment. At the time of the colonization of America abso- 
lutism was making its last struggle for political suprem- 
acy. The Dutch colony of New York was planted dur- 
ing the twelve years' truce; nearly all of the colonies 
were founded prior to the peace of Westphalia; the prin- 
ciple of the separation of powers was not established in 
England till 1688. We may, therefore, expect to find 
the fictions of absolutism involved in the settlements. 
Some dreamed of gold, others of states and empires. 
The Crown would make the western world a royal fief; 
those who would attain their ends by commerce and in- 
dustry sought corporate charters and monopolies; ihose 
who sought to satisfy their desires through the exercise 
of functions of government would be made lords pro- 
prietary "with free, full and absolute power * * * to 
ordayne, make and enact * * * any laws whatso- 
ever," hold courts, collect revenues, etc. 

But attempts to transplant these ideas to American 
soil proved more difficult than had been anticipated; 
there was nothing here to sustain them. The natural re- 
sources were undeveloped; there was no industrial class 



32 A long list of events might be referred to as the result 
of this attitude. One of the events of the present century 
illustrative of this spirit is the "opium war." 

See McCarthy's History of Our Own Times, Vol. I, p. 116, 
et seq. (Armstrong Ed.); Callery and Yoan, History of the 
Insurrection in China. Ed. 1853, p. 15, et seq. 

It is not suggested that the conduct of England toward weaker 
nations and her own colonies has been more reprehensible 
than that of other powers during the same period. On the 
other hand the illustration, is used only as a means of setting 
forth the practice of the foremost of powers in the evolution 
of government. 



EVOLUTION OF THE STATE. 37 

upon which to feed; such assumptions of absolutism 
could not be maintained in an untamed wilderness. All 
of the early attempts at colonization, therefore, came to 
naught. The governing classes were compelled to adopt 
a form of political organization for the colonies which 
was favorable to the industrial welfare of the colonists 
and to discard their highly wrought ideals of control. 
From the nature of things the purpose of colonization 
became industrial; the conditions of life in the new 
world were industrial; the spirit of the times was indus- 
trial. The environment of society in America was such 
that none other than an Industrial State — a state based 
on the general welfare — could live. 

Had absolutism maintained its assumptions there 
could have been no British colonial system. Had the 
English government later been able to play the part of 
the imperial master the history of the British Empire 
would doubtless have been quite similar to that of Greece 
and Rome. 

The basis of American colonization being industrial, 
the colonists, taking on an industrial polity, claiming the 
right of self-government under the constitution of Eng- 
land, as Englishmen, in revolution against these assump- 
tions they won for themselves political freedom; they 
established an imperial polity upon the principle of the 
public welfare. This is the service which the United 
States of America has rendered to the world. S3 This was 
its contribution to the evolution of the modern state. 



33 In the evolution of this "imperial policy based on the prin- 
ciple of the general welfare," since its establishment in 1887 
the European nations have in some respects gone further than 
our own government. Subsequent to the reform acts of Eng- 
land, the revolutionary period of 1848-9 and the German Fed- 
eration we have found many of our models of reform in those 
nations which still retain, in form, a monarchial system. In 
fact, they have in some particulars, become more democratic, 
more highly responsive to the public will and more efficient 
in administration than others of republican form. 



38 THE GROWTH OF DEMOCRACY. 

The principle of sovereignty, at first imposed by the 
conqueror as a fiction necessary to the enjoyment of the 
spoils of conquest and the privileges established by force, 
still lives. Wrested from the hands of the despot, the 
monarch, the military chief, it is now an instrument of 
economic achievement in the hands of the people. In 
the evolution of political institutions a broad co-oper- 
ative policy, based on the general welfare, has obtained 
the mastery. Strengthened by antagonism, forced into 
broader and more powerful organization, passing suc- 
cessively through the form of the local or village com- 
munity, the municipality, the state, it has assumed con- 
trol of empires and we may look forward with hope to 
the time when the whole world will be organized under 
one economic system. 34 The polity of conquest is on 
the wane. In some of the states it is still the dominant 
force; but, being parasitic in its nature, both the state 
employing it and the polity itself are doomed to exter- 
mination. Many of its fictions still remain in the mod- 
ern state, but, in so far as they are opposed to the gen- 
eral welfare, they too must go. The political problems 
of to-day have to do largely with their elimination. 
Having traced, very briefly, the evolution of the modern 
state, we now turn our attention to the historic preced- 
ents of popular, co-operative government in the Amer- 
ican colonies. 



34 "Dislikes to governments of certain kinds must not pre- 
vent us from seeing their fitnesses to their circumstances. 
Though, rejecting the common idea of glory, and declining 
to join soldiers and school boys in applying the epithet 'great' 
to conquering despots — we detest despotism — though we regard 
the sacrifices of their own peoples and of alien peoples in pur- 
suit of universal dominion as gigantic crimes, we must yet 
recognize the benefits occasionally arising from the consolida- 
tions they achieve. * * * Not simply do we see that in the 
competition among individuals of the same kind, survival of 
the fittest has from the beginning furthered production of a 
higher type; but we see that to the unceasing warfare between 
species is mainly due both growth and organization. Without 
universal conflict there would have been no development of the 



EVOLUTION OF THE STATE. 39 

active powers. * * * Similarly with social organisms. We 
must recognize the truth that the struggles for existence be- 
tween societies have been the instrument to their evolution. 
Neither the consolidation and the reconsolidation of small 
groups into large ones; nor the organization of such compound 
and doubly compound groups; nor the concomitant develop- 
ments of those aids to a higher life which civilization has 
brought; would have been possible without inter-tribal and 
inter-national conflicts. Social co-operation is initiated by joint 
defence and offence; and from the co-operation thus initiated 
all kinds of co-operation have arisen. Inconceivable as have 
been the horrors caused by this universal antagonism which, 
beginning with the chronic hostilities of small hordes tens of 
thousands of years ago, has ended in the occasional vast battles 
of immense nations, we must nevertheless admit that without 
it the world would still have been inhabited only by men of 
feeble types, sheltering in caves and living on wild food." — 
Spencer, Prin. Soc, II, pp. 231, 240, 241. 



40 THE GROWTH OF DEMOCRACY. 



CHAPTER II. 

THE EVOLUTION OF GOVERNMENT IN THE COLO- 
NIES. 

Tn the year 1496 John Cabot sailed along the eastern 
coast of North America from Newfoundland south to 
the thirty-eighth degree north latitude, by virtue of 
which fact Henry VII. assumed to be the rightful owner 
not only of the territory actually viewed by this royally 
commissioned navigator but also of all that territory 
lying to the west and the islands near the eastern shore. 
The Indians and all other inhabitants were thereafter 
regarded as holding the soil and exercising the functions 
of government subject to his sovereignty, 35 having only 
rights of occupancy and use 36 subordinate to the title of 
the King. Upon this foundation, this fiction of abso- 
lutism, all subsequent governmental structures in Amer- 
ica were built. 37 

Not only was the foundation for American coloniza- 
tion an assumption of absolutism, but the first institu- 
tions erected thereon were also of similar nature and 
origin. The first charters granted by the Crown be- 
longed to the institutions of feudalism and conquest — 
were in the nature of fiefs. The grantees of the charters 
to John Cabot (1497) and Hugh Eliot (1502) were em- 
powered to subdue and possess the territories discovered 
as the vassals and lieutenants of the King. 38 By the 



35 Story of the Cons., Sec. 6. 

36 Story of the Cons., Sec. 7. See Johnson v. Mcintosh, 8 
Wheat, 543. 

37 Story of the Cons., Sec. 2. 

38 H. L. Osgood, Am. Hist. Rev., Vol. II, p. 647. 



GOVERNMENT IN THE COLONIES. 41 

charters granted to Sir Humphrey Gilbert (1578) and 
Sir Walter Raleigh (1584) attempts were made to erect 
in the western wilderness that form of fief known as a 
palatinate. But the fief, as a form of political organiza- 
tion under which to establish a colony, proved a failure. 
Four charters had been granted and two attempts made 
at colonization under them to no effect other than to 
firmly fix and gain recognition for the primary assump- 
tion of sovereignty. 

The seventeenth century ushered in a new series of at- 
tempts at colonization. The first was one in which the 
King retained to himself the exercise of all the regalities 
'and sovereignties. Instead of granting governmental 
powers to a lord and allowing him to organize a palati- 
nate, he granted to persons desirous of exploiting the 
new continent a right to settle on certain parts of the 
royal domain. By the first charter of Virginia (1606) no 
governmental powers whatever were extended to the 
grantees. 39 So far as they were concerned they were 
only permitted to hold land of the King under his arbi- 
trary assumption of ownership. The form of govern- 
ment was that of a royal province (or, we might say, a 
palatinate over which the King himself was the lord), 
having its directive machinery in England. The Royal 
Council of Virginia was the creature of the King, as were 
also, indirectly, the councils, designed for each of the 
colonies to be sent out, which were to reside in Amer- 
ica. The patentees who interested themselves in "the 
first colony" (Virginia) succeeded in maintaining a weak 
and dwindling settlement till a change in organization 
was effected; but the patentees who interested them- 
selves in "the second colony" (New England) made only 
one settlement, Sagadahoc, and that entirely disap- 
peared. It became evident to all concerned that a body 



39 H. L. Osgood, Pol. Sci. Quart., Vol. XI, p. 206. 



42 THE GROWTH OF DEMOCRACY. 

of men who were accustomed to the exercise of arbi- 
trary power, who resided thousands of miles from the 
colony, and who knew little or nothing of prevailing con- 
ditions could not successfully govern. Failure stamps 
the second form of experiment in colonization. 

That the interests of the colonists might be better con- 
served, another form of organization was now employed. 
The trading company was taken as a model, incorpo- 
rated, and given certain political powers for orderly con- 
duct of affairs. The essay was made in 1609, when the 
first charter of Virginia was supplanted by the second. 40 

40 The charter of 1609 recites that "whereas at the humble 
Suit and Request of sundry our loving and well disposed Sub- 
jects, intending to deduce a colony, and to make Habitation 
and Plantation of sundry our People in that part of America, 
commonly called Virginia. * * * Now, for as much as div- 
ers and sundry of our loving Subjects * * * have of late been 
humble Suitors unto Us, that (in Respect of their great Charges 
and the Adventure of many of their Lives, which they have 
hazarded in the said Discovery and Plantation of said Country) 
We would be pleased to grant them a further Enlargement 
and Explanation of said Grant, Privileges and Liberties, and 
that such Councellors, and other Officers, may be appointed 
amongst them, to manage and direct their Affairs, * * * 
We greatly effecting the effectual Prosecution and happy suc- 
cess of said Plantation, and commending their good desires 
therein, for their further Encouragement * * * do of our 
special Grace * * * Give, Grant, and Confirm, to our trusty 
and beloved Subjects (naming about six hundred fifty persons 
beside over fifty liveried companies interested) and to such 
and so many as they do, or shall hereafter admit to be joined 
with them * * * whether they go in their Persons to be 
Planters there in the said Plantation, or whether they go not, 
but adventure their monies, goods or Chattels, that they shall 
be one Body or Commonalty perpetual, (providing for the 
ordinary powers of a private corporation) * * * And foras- 
much as it shall be necessary for all such our loving Subjects 
as shall inhabit within said Precincts of Virginia aforesaid, 
to determine to live together in the fear and true Worship of 
Almighty God, Christian Peace, and Civil Quietness each with 
other, whereby everyone may with more Safety, Pleasure, and 
Profit enjoy that whereunto they shall attain with great Pain 
and Peril," full political powers are granted to elect officers, 
provide the proper forms and ceremonies of office, "to cor- 
rect, punish, pardon, govern and rule," all subjects within the 
territory granted or going to and from the same, to suppress 
rebellion, exercise martial law, etc. See Poore's Charters, p. 
1893, et seq. 



GOVERNMENT IN THE COLONIES. 43 

The essential change was that of placing the full control 
and management of affairs in the hands of those ma- 
terially interested in the success of the enterprise. It 
became now a matter of business. Here was a company 
that had obtained a tract of land about four hundred 
miles wide and extending across the continent. They 
had full powers to dispose of this as they pleased, and to 
govern in such manner as was necessary to protect the 
interests of all concerned. The land had cost them little 
or nothing. Their problem was that of so managing 
the affair that by the investment of the least capital they 
might get the largest return in profits. They cared little 
or nothing for royal dignities, for manorial and feudal 
privileges. The enterprise appealed to them as a matter 
of shillings and pounds. How could they utilize this im- 
mense tract of land to their own highest interest? The 
manner in which they attempted to solve the problem 
was by appealing to the financial interests of others and 
thereby obtaining their co-operation. They laid their 
"proposition" before the public in much the same way 
that a modern mining company would do: 

In America there were immense natural resources. 
These resources needed development. If developed they 
would become immensely valuable. A share in the ad- 
vantages of development and of the resources of the 
new continent might be obtained through the company 
in several ways: 

i. By Purchase. — By the payment of £12 10s. a bill 
of adventure, or one share of stock, might be obtained. 
This entitled the holder to one hundred acres of land 
at once and after this was settled, or "seated," one 
hundred acres additional upon the second distribu- 
tion. 41 All who received bills prior to 1625 were to be 



41 This was represented to take place about 1616. 



44 THE GROWTH OF DEMOCRACY. 

exempt from quit rents. They were also entitled to 
their pro rata of the profits. 

2. By Services Rendered. — These might be of sev- 
eral kinds. Those who became tenants or servants of 
the company previous to the return of Sir Thomas 
Dale were to be allowed, at the expiration of their term 
of service, a patent to one hundred acres of land and 
entitled to one hundred acres more at the second dis- 
tribution, provided that a house were erected on the 
second hundred acres within three years. Such serv- 
ice was considered as equal to the purchase of one 
share. A planter who at his own cost went to a 
colony was given one hundred acres and placed on a 
one-share footing. One might also combine the rights 
of purchase and the rights of service and thus aug- 
ment his economic advantage. Official service was to 
be recognized by grants of land suitable to the station 
of the officer; and for meritorious military or other 
service, involving sacrifice or valor, great liberality 
was shown. 42 

3. By Head Right. — Each shareholder who trans- 
ported an emigrant, free or bond, was entitled to fifty 
acres if he remained in the colony three years, and 
fifty acres in the second distribution — i. e., the rights 
of one-half of a share. The same inducement was 
soon offered to all persons. 

In addition the company offered civil order and mili- 
tary protection. To its own tenants and servants sup- 
plies were also furnished. Such may be considered the 
"prospectus" of the company. 



42 In 1619 Captain Newport was given a bill of adventure 
equal to thirty-six shares and on his death his widow thirty- 
five more in recognition of his services to the colony. Many 
others were rewarded in like manner. 



GOVERNMENT IN THE COLONIES. 45 

In that age of increasing accumulations of capital, on 
the one hand, and increasing economic pressure on the 
lower classes, on the other, the elements were at hand for 
the successful colonization of Virginia. The corporation 
brought together the elements of success in colonial en- 
terprise. Under the economic advantages offered to 
settlers and the order secured by the military organiza- 
tion the colony grew; but, growing, the settlers de- 
manded a form of political organization that would be 
primarily responsive to their own interests. The Lon- 
don Company, the corporation, with its principal 
officers, remained in England. It attempted to manage 
the colony through a branch office, so to speak, which 
had been established there. As a governmental organ- 
ism it resembled a military despotism. 

The democratic spirit soon manifested itself in political 
organization. When the corporation became practically 
bankrupt, through the infidelity of its officers, and cer- 
tain co-operative companies desired to obtain grants of 
land with a certain local autonomy, this was conceded, as 
a result of which the English borough was taken for a 
model of local organization. Each plantation (settle- 
ment) and corporation (town) was to be a political unit. 
Yeardley, after the disastrous administration of Argall, 
was instructed to call an assembly to be composed of two 
representatives from each of the plantations and corpora- 
tions. By this act, the Assembly of Burgesses, 1619, 
the local political units of the colony were cemented to- 
gether into one political whole. The colony came to 
feel that it was politically superior to the company. The 
company itself, involved in conflicts and attempts at ad- 
justment, finally, on June 16, 1624, by quo warranto pro- 
ceedings was dissolved. Thereafter Virginia was a royal 
province, having its governmental machinery within the 
colony. The corporation had planted a colony — had laid 
the foundations for a nation. As an economic organiza- 



46 THE GROWTH OF DEMOCRACY. 

tion it had been superior to the forms that had preceded 
it, but as a political organ it too must be regarded as a 
failure. 

The Massachusetts Bay Company, in its origin, is in- 
volved in much the same form of corporate organiza- 
tion. Its history, however, was quite different. Some 
of the patentees of "the second colony" (New England) 
under the charter of 1606, after the failure of the Saga- 
dahoc enterprise, had procured a charter from the King 
under the name of "The Council established at Plymouth, 
in the county of Devon [Eng.] for the Planting, Rul- 
ing and Governing of New England, in America." This 
corporation is known as "The New England Council." 
The powers granted and the form of organization was 
very similar to those under the Virginia charter of 1609. 
It was probably modeled after it. Massachusetts had 
become attractive by reason of its fisheries, and in 1623 
a station had been established at Cape Ann. The enter- 
prise had proven a failure, but six of the adventurers, 
Hi 1^28, procured a grant of territory from "The New 
England Council." These persons, together with others, 
obtained from the Crown a charter of incorporation, 
confirming the territorial grant of "The New England 
Council" and adding full corporate and governmental 
powers. The corporation was known as the Company of 
Massachusetts Bay in New England. It was also mod- 
eled after the Virginia Company of 1609. The adminis- 
tration of its affairs was given to a governor-, deputy and 
eighteen assistants, elected annually by freemen (mem- 
bers of the corporation), "which said Officers shall applie 
themselves to take Care for the best disposing and order- 
ing of the generall buysines and Affaires of, for, and con- 
cerning the said Landes and Premises hereby mencoed, 
to be graunted .and the Plantacion thereof, and the gov- 
ernment of the people there." This administrative body 
was to meet once a month. Four times a year, "vpon 



GOVERNMENT IN THE COLONIES. 47 

every last Wednesday in Hillary, Easter, Trinity and 
Michas Termes respectivele forever;" there was to be 
"one greate generall and solmye assemblie" of the com- 
pany, to consist of governor, assistants and all the free- 
men that might attend, and this "greate and generall as- 
semblie" was entrusted with full powers to choose and 
admit into the company so many as they should think 
fit, to elect and constitute all requisite officers and to 
make laws and ordinances for the welfare of the com- 
pany and for the inhabitants of the plantation, "so as such 
laws and ordinances be not contrary and repugnant to 
the laws and statutes of the ralme of England." 44 The 
seat of government, however, remained in England till 
1629, when, it being thought that the seat of gov- 
ernment was too far distant, at a general court 
or "assemblie" held on the 29th of August in 
that year a general consent appeared by the 
erection of hands that "the government and patent 
should be settled in New England." 45 The gov- 
ernment and charter were accordingly removed, and 
henceforth the whole management of all the affairs of the 
colony were confided to persons and magistrates "resi- 
dent within its own bosom." The fate of the corpora- 
tion, as well as the colony, was thus decided. The com- 
pany at once began "to devote itself to the work of set- 
tlement and government. It laid aside commercial en- 
terprise; 46 it no longer acted as a land company; it did 
not seek profit, but the general well-being of the colony. 
Instead of managing its lands, it disposed of them to 
towns or organized communities of persons. The town- 
ship became the local political unit. 47 

44 Poore's Charters and Constitutions, Vol. I, p. 936-7. 

45 Bancroft, I, 224, 231. 

46 Commercial enterprise was left to private persons instead 
of being conducted by the company. 

47 See "The Colonial Corporation" by H. L. Osgood, Pol. 
Sci. Quart, Vol. XI, pp. 502 et seq. 



48 THE GROWTH OF DEMOCRACY. 

The second decisive step by which the company be- 
came completely assimilated to the colony was one estab- 
lishing the qualifications for membership. Many of the 
colonists made application to the general court for the 
privileges of "freemen." 48 In prescribing conditions the 
court ordered that "to the end the body of the commons 
may be preserved of honest and good men * * * 
for time to come no man shall be admitted to the freedom 
of this body politic but such as are members of some of 
the churches within the limits of the same." The ques- 
tion of membership was made dependent on considera- 
tions of general welfare instead of those commercial or 
financial. By these acts the nature of the organization 
was completely changed; from a colonial company the 
corporation had become identical with the politically or- 
ganized colony; it had become a Puritan commonwealth. 
The increase in the number of freemen and their disper- 
sion over areas too broad to admit of their meeting in a 
general court for the transacting of public affairs soon 
led to the adoption of the representative system. Within 
the Massachusetts Bay Colony two evolutionary proc- 
esses had gone on, viz., the transformation of a com- 
mercial corporation into a colonial commonwealth and 
the evolution of a system of representative government 
from a pure democracy. This was the last attempt to 
use the "London Company" as a model for colonization. 
It had succeeded in founding colonies, but as a political 
institution it could not survive. 

One other colony owes its life to corporate enterprises 
— Georgia. This was not established till the next cen- 
tury. From the standpoint of a political organization it 
supplied more of the conditions of success than those of 
Virginia and Massachusetts. Its prime object was the 
welfare of the colonists instead of profit to the incorpo- 

48 This term as used in the charter indicated men free to 
exercise the rights of membership in the corporation. 



GOVERNMENT IN THE COLONIES. 49 

rators. Georgia holds a unique position among colonial 
enterprises. In 1732 James Oglethorpe, an English 
philanthropist, in order to relieve imprisoned debtors 
and persecuted Protestants, secured from George II. a 
charter grant to "all those lands, countrys and territories 
situate, lying and being in that part of South Carolina^ in 
America, which lies from the most northern part of a 
stream or river there, commonly called the Savannah, all 
along the sea coast to the southward, unto the most 
southern stream of a certain other great water or river 
called the Alatamaha, and westerly from the heads of the 
said rivers, respectively, in direct lines to the South 
Seas 49 [Pacific]." 50 This charter also created Ogle- 
thorpe and eighteen others and their successors 
"a body politic and corporate in deed and in 
name, by the name of the Trustees for Estab- 
lishing the Colony of Georgia, in America." 51 
The corporation was in the nature of a trust, was elee- 
mosynary in character. Its government was to consist 
of a President and a Common Council of fourteen mem- 
bers which was later to be increased to twenty-four. As 
an inducement to settlement it was declared that "every 
person or persons who shall at any time hereafter in- 
habit or reside within our said province, shall be and 
are hereby declared to be free, and shall not be sub- 
ject to any laws, orders, statutes or constitutions which 
have been heretofore made or enacted, ordered or en- 
acted for * * * our said province of South Caro- 
lina; * * * that forever hereafter there shall be a 
liberty of conscience allowed in the worship of God 
* * * except papists * * * so they be content 
with the quiet and peaceable enjoyment of the same, not 
giving offence or slander to the government," and the 

49 Bancroft, II, p. 281. 

50 Poore, p. 373. 

51 Id., p. 369. 
4 



50 THE GROWTH OF DEMOCRACY. 

Common Council was given power "to distribute, con- 
vey and set over such particular portions of land, tene- 
ments and hereditaments * * * unto such of our 
loving subjects * * * that shall be willing to become 
our subjects and live under our allegiance in said colony 
upon such terms and such estates and upon such rents, 
reservations and conditions as the same may be granted, 
and as the said Common Council * * * shall deem 
fit and proper." To make a liberal provision for the 
acquirement of estates in the colony it was provided that 
only four shillings should be charged per hundred acres, 
demised, planted or settled, "said payment not to com- 
mence or be made until ten years after such grant, 
demise, planting or settling." Besides this, no grant 
could be made "to any person being a member of the 
said corporation; or to any other person in trust for 
the benefit of any member of said corporation." Be- 
quests were made by various philanthropic persons and 
societies; appropriations were made by Parliament, and 
every aid given to put the colony on a successful foot- 
ing. The devoted spirit of Oglethorpe is shown on 
every hand. His treatment of the Indians was so just 
that his reputation was spread far and wide, and they 
came many hundred miles to form peace alliances and 
express their good feeling. Those prosecuted for con- 
science and financial misfortune in every land swelled 
the ranks of the colony. But again the fallacy of gov- 
ernment by non-residents and those living under dif- 
ferent conditions of life was demonstrated. The trus- 
tees were of the landed, feudal aristocracy. They did not 
understand the economic conditions of the new world. 
They made such laws as were adapted to the tenantry 
and the feudal establishments of their English home/' 2 



52 The laws which the trustees had instituted were irksome. 
Their impracticability appears in the land system adopted. To 
insure an estate even to the sons of the unthrifty, to strengthen 



GOVERNMENT IN THE COLONIES. 51 

On this account the colony "languished until at length 
the trustees, wearied of their own labors and the com- 
plaints of the people, in June, 175 1, surrendered the 
charter to the Crown. Henceforward it was governed as 
a royal province, enjoying the same liberties and im- 
munities as other royal provinces." 53 

The fourth form of experiment in colonial govern- 
ment, the voluntary association, was largely the result 
of accident. The adventurers who settled at Plymouth, 
Mass., had procured a patent to lands in Virginia under 
the London Company charter grant. In 1620 the Puri- 
tans set out in the Mayflower for their new home. As 
their original intention was to settle in territory over 
which government had already been established, no pro- 
vision was made for the exercise of political powers ex- 
cept such as were provided for under the instructions 
of the London Council. Arriving off the New England 
coast in the beginning of winter, compelled by storm 
(or misguided by their Dutch pilot while in duress), they 
put in at Cape Cod for shelter and there they decided to 
remain. They were now confronted by unforeseen con- 
ditions. The territory upon which they were to land 
was not within the jurisdiction of the company from 
which they had obtained their grants. Here there was 
no legal sanction for control. Many of those under 
contract had already threatened to take advantage of this 
fact. Some form of political organization must be 
effected at once. These were the fortuitous circum- 
stances which gave birth to the independent voluntary 
association as an instrument of colonization. On the 
nth of November, while yet on shipboard, the under- 

a frontier colony, the trustees, deceived by reasonings from 
the system of feudal law and by their own prejudices as mem- 
bers of the landed aristocracy of England, had granted lands 
only in tail male. Here was a grievance that soon occasioned 
a just discontent. 
53 Story, Sec. 144. 



52 THE GROWTH OF DEMOCRACY. 

takers of the enterprise organized themselves into a body 
politic by the following compact: 54 

In the name of God amen: We whose names are 
underwritten, the Loyal Subjects of our dread Sov- 
ereign Lord King James, by the Grace of God, of Great 
Britain, France, and Ireland, King, Defender of the 
Faith, etc., Having undertaken, for the Glory of God, 
and the Advancement of the Christian Faith, the Honor 
of our King, and Country, a Voyage to plant the first 
Colony in the Northern Parts of Virginia, Do, by these 
Presents, solemnly and mutually, in the Presence of God 
and one another, covenant and combine ourselves to- 
gether into a civil Body Politick, for our better Order- 
ing and Preservation and Furtherance of the Ends 
aforesaid: And, by Virtue hereof, do. enact, constitute, 
and frame, such just and equal Laws, Ordinances, Acts, 
Constitutions, and Offices, from time to time, as shall 
be thought most meet and convenient for the general 
Good of the Colony; Unto which we promise all due 
Submission and Obedience. 

Their executive and administrative officers consisted 
of a governor, elected annually, 55 and one assistant. 
The supreme legislative power resided in and was exer- 
cised by the whole body of male inhabitants who were 
church members. 56 Afterward the number of assistants 
was increased to five and later to seven, 57 but the people 
continued to exercise the supreme law-making power 
for eighteen years. The evolution of a representative 
system was the result of colonial expansion and the 
adaptation of the political organization to the needs of 
the people. As the town of New Plymouth grew other 
settlements sprang up around it. Some of the settlers 
moved out to Duxbury 58 and established a township 



34 Poore's Charters, p. 931. 

55 Plymouth Laws, Hazen's Col., I. p. 404, 408. 

5 * Plymouth Laws, Hazen's Col.. I, p. 408, n, 12, 17. 

67 Plymouth Laws, Hazen's Col., I, p. 404, 8, 11, 12. 

58 Record, Vol. I, p. 62. 



GOVERNMENT IN THE COLONIES. 53 

there, others went to Scituate. 59 In 1636 it was thought 
expedient to revise and codify the laws of the colony, 
and two representatives from the township of Scituate, 
two from Duxbury and four from Plymouth met with 
the court to put the law in convenient form. 60 The 
people in the outlying towns found it inconvenient to 
come to Plymouth to attend all of the meetings, there- 
fore in November, 1636 it was decided to hold sepa- 
rate meetings for purposes of election of officers, at 
which the electors might send proxies. But still it was 
a finable offense for a freeman to be absent from the 
other meetings of the general court or assembly. 61 The 
impracticability of conducting affairs in this manner led 
to the adoption of a representative system in 1638. The 
primary assembly remained in theory, but in practice 
it met as an electorate. 

Without any authority given from without either for 
the exercise of political powers or the occupation of 
territory, the Puritans had established themselves in a 
wilderness under the most adverse conditions. The po- 
litical authority was supplied by social compact — an 
agreement of self-government; a year later a legal title 
to the territory was procured from "The New England 
Council." By these acts they had avoided conflict and 
established a state — a state built by their own hands 
and which continued to exercise its powers without 
incorporation or coming under power of the Crown till it 
was finally absorbed by the Massachusetts Bay Colony; 
the two colonies were organized as the Royal Province 
of Massachusetts. The successful experiment at New 
Plymouth was repeated fourteen years later in the Con- 
necticut Valley. This region had been prospected by 



59 Record, Vol. I, p. 44. 

60 Record, Vol. XI, p. 6. 

61 At one meeting in 1638 sixteen freemen were fined for non- 
attendance. 



54 THE GROWTH OF DEMOCRACY. 

Oldham and Hall in the interest of trade with the In- 
dians. In 1633 a few Plymouth people opened a trading 
post at Windsor. An agricultural settlement was made 
at Wethersfield in 1634. Windsor, in 1635, and Hart- 
ford, in 1636, were the nuclei of two others. These 
agricultural settlers being freemen of Massachusetts Bay, 
obtained license from and were at first considered as 
being under the jurisdiction of that colony. They were, 
during the first year, governed by officers appointed by 
the Massachusetts Bay court, but as their commissions 
were not renewed the inhabitants organized themselves 
into independent towns and thereafter managed their 
own affairs. 02 

The first form of independent political organization in 
the colony was that of the town, or township. After the 
Massachusetts Bay colony relinquished control these 
local political units constituted in and of themselves the 
sovereign authority over their various members. That 
authority was exercised by the people organized in town 
meetings as a democracy. Common necessity and com- 
mon interest brought those various towns together. The 
necessity of maintaining order within — of marking out 
their several jurisdictions and avoiding conflict, the 
danger of extermination at the hands of the hostile 
Pequott from without — all these circumstances taught 
them the advantage of union. The joint meetings, at 
first in the nature of conferences and temporary agree- 
ments, soon matured into a central governmental struc- 
ture. May 1 st, 1637, is assigned as the natal day of the 
Connecticut colony. 63 

62 See Andrews, The Beginnings of the Connecticut Towns, 
Ann. of Am. Acad. Vol. I, p. 165, et seq. 

63 'Accordingly the subsequent court meeting at Hartford, 
May 1, 1637, for the first time took the name of the "Gen- 
rall Corte," and was composed, in addition to the town magis- 
trates who had previously held it, of "committees" of three 
from each town. So simply and naturally did the migrated 
town system evolve, in this binal assembly, the seminal prin- 



GOVERNMENT IN THE COLONIES. 55 

The "General Corte" thus formed, however, was only 
a provisional government. On January 14th, 1638, the 
colony adopted a formal constitution — a government of 
their own organization, based on social compact, in 
which neither King, Parliament, home corporation or 
proprietary lord had a place — a true republic. As the 
"agreement between the settlers at New Plymouth" 
made on board the Mayflower was the first fundamental 
compact, making authoritative provision for govern- 
ment by voluntary agreement among the members of 
society to be governed, so this may be said to be the 
first written constitution, the first clearly formulated 
governmental structure, based on social compact. Its 
preamble recites : 

Forasmuch as it hath pleased the Almighty God by 
the wise disposition of his divyne Pruidence so to Order 
and dispose of things that we the Inhabitants and Resi- 
dents of Windsor, Hartford and Wethersfield now co- 
habiting and dwelling in and vppon the River of Conect- 
ecotte and the lands ther unto adioyneing; and well 
knowing where a people are gathered together the word 
of God requires that to mayntayne the peace and vnion 
of such a people there should be an orderly and decent 
gouernment established according to God, to order and 
dispose of the affayres of the people at all seasons as 
occasion may require; doe therefore assotiate and con- 
ioyne ourselves to be as one Public state or Common- 
wealth. 64 



ciple of the Senate and House of Representatives of the future 
state of Connecticut. The assembly further showed its con- 
sciousness of a separate existence by declaring "an offensive 
warr agt the Pequoitt," assigning the portions of its minia- 
ture army and supplies to each town and appointing a com- 
mander. In June it even ordered a settlement to "sett downe 
in the Pequoitt Countrey & River in place convenient to mayn- 
teine or right yt God by conquest hath given to us." So 
complete are the features of Statehood, that we may fairly as- 
sign May 1, 1637, as the proper birthday of Connecticut. No 
King, no Congress presided over the birth; its seed was in 
the towns.' — Johnson, Genesis of the New England States, p. 14. 
64 Poore's Charters and Constitutions, Vol. I, p. 249. 



56 THE GROWTH OF DEMOCRACY. 

The constitution then makes specific provision for the 
structure of the body politic and the exercise of its func- 
tions; for two "generall assemblies or courts," per year; 
for the election of governor, magistrates and deputies, 
and the manner of conducting elections; for the qualifi- 
cations of officers and electors; the powers of the various 
departments, etc. Section 10 is most significant in its 
constitutional provisions: 

It is ordered, sentenced and decreed that euery Gen- 
erall Courte, except such as through neglecte of the 
gournor and the greatest prte of magestrats the Free- 
men themselves doe call, shall consist of the Governor 
or some one chosen to moderate the Court and 4 other 
magistrats at lest, wth the mayor prte of the deputyes 
of the seuerall Townes legally chosen; and in case the 
Freemen or mayor prte of the through neglect or re- 
fusall of the Governor and mayor prte of the magistrats 
shall call a Courte, yt shall consist of the mayor prte 
of Freemen that are prsent or their depuytes, wth a 
Moderator chosen by the: In wch said Generall Courts 
shall consist the supreme power of the Commonwealth, 
and they only shall haue power to make laws, or repeal 
the, to grant leuyes, to admitt of Freemen, dispose of 
lands vndisposed of, to sevrall Townes or prsons, and 
also shall have power to call ether Courte or Magestrate 
or any other prson whatsoeuer into question for any 
misdemeanour, and may for just causes displace or deale 
otherwise according to the nature of the offence; and 
also may deale in any other matter that concerns the 
good of this Commonwealth, except election of mages- 
trats wch shall be done by the whole boddy of Free- 
men. 65 

This constitution served them till 1662, when the New 
Haven and Connecticut colonies were united under one 
government — a government very similar to that now in 
operation in that State. 

Following Connecticut, Rhode Island next assumes 



65 Poore's Charters and Constitutions, p. 251, 



GOVERNMENT IN THE COLONIES 5? 

the role of self-made State. Its government seems almost 
wholly the product of its own immediate environment, 
and most free from the influence of extraneous forces. 
Here we have a colony "that was neither previously 
planned nor planted;" it simply grew. It had no guid- 
ing paternal government; no primary corporation as an 
organized center; no founder. It was in truth a volun- 
tary association. 66 

In January, 1636, Roger Williams, and about twenty 
others, left Salem that they might avoid the harshness 
of religious law and opinion and established a planta- 
tion on Narragansett Bay. 67 From this time till August 
20, next, "the masters of families had ordinarily met once 
a fortnight and consulted about their common peace, 
watch and planting." 68 At this time a formal written 
agreement was made which was signed by thirteen new- 
comers and which set forth in the form of an oath of 
allegiance the authority claimed by the people in their 
assemblies. 69 The government was at first a pure 
democracy. 70 Not till 1640 did they reach the point of 
a regular election of town officers and "agree for the 
time to choose the various officers required." 

Providence having grown and prospered, other towns 
were established — Portsmouth in 1638, and Newport in 
1639. They were independent communities, purely 



66 Foster, Town Govt, in R. I., p. 7. 

67 Foster, Town Govt, in R. I., p. 8, 45, 76. 

68 Letter of Williams to Winthrop — Narragansett Club Pap. 
IV, 4. 

69 "This agreement went into immediate effect and constituted 
the town government for several years." Staple's Annals, p. 44. 

70 "The government was at first a pure democracy. Not 
an aristocracy, in which certain chief members of the com- 
munity assumed the authority, not even a representative re- 
public, in which the interests of all were subserved by the dele- 
gation of actual legislation to a particular number. There was 
no selection; and there was no delegation." Town Govt, in 
R. I., p. 16. 



58 THE GROWTH OF DEMOCRACY.. 

democratic in their government, making their own laws, 
administering their own justice. 71 

In 1640 Portsmouth and Newport coalesced. 72 There 
was great strife between these towns on the one hand 
and Providence and Warwick on the other. The two- 
fold danger of being swallowed up by the stronger juris- 
diction of Massachusetts from without and of being torn 
by disorders from within, drove them into political 
union. Roger Williams, in 1643, i n order to secure a 
surer foundation, both of title and government, pro-, 
cured a charter which among grants of political freedom 
to American colonies takes first rank. 73 After reciting 
the facts of settlement, of the necessity of protecting 
the plantations, of services rendered, of the purchase of 
land from the Indians, and of their desire for a "free 
Charter of Civil Incorporation and Government," the 
charter provides: 

In due consideration of the said premises * * * 
out of a desire to encourage the good Beginnings of 
the said Planters, Do, by the authority of the aforesaid 
Ordinances of the Lords and Commons, give, grant, and 
confirm, to the aforesaid Inhabitants of the Towns of 
Providence, Portsmouth and Newport, a free and abso- 
lute Charter of Incorporation * * * Together with 
full Power and Authority to rule themselves, and such 
others as shall hereafter inhabit within any Part of said 
Tract of land, by such a Form of Civil Government, as 
by voluntary consent of all, or a greater part of them, 
they shall find most suitable to their Estate and Con- 
dition ; and for that End to make and ordain such Civil 
Laws and Constitutions, * * * as they, or a great 
Part of them, shall by free consent agree unto. 74 

By this grant the right to govern by common consent 
and according to their own free constitution was secured 

71 Foster, Town Govt, in R. I., pp. 17, 18. 

72 Town Govt, in R. I., p. 10. 

73 Poore's Charters, p. 1594. 

74 Poore's Charters and Constitutions, p. 1595- 



GOVERNMENT IN THE COLONIES. 59 

and in 1647 the freemen of these towns met in general 
assembly and organized a central government for the 
colony of Rhode Island. 

In this "common government," however, the people 
did not part with the lawmaking function. The colonial 
legislature, created by "the code" of 1647, consisting of 
a president, eight assistants and twenty-four commis- 
sioners, had no power to originate legislation. The laws 
were first proposed and discussed in the towns. When 
all four of the towns, each by itself, had acted on and 
favorably considered the proposed law it was to be passed 
en by the General Assembly, whose action was simply a 
final ruling upon it. "Thus," says Arnold, "the laws 
emanated directly from the people." 

In 1663 the General Assembly 75 was given power to 
originate laws and was invested with authority "from 
tyme to tyme to make, ordayne, constitute, or repeal 
such lawes, statutes, orders and ordinances, fformes and 
ceremonies of Government and magistracy as to them 
shall seem meete for the good and welfare of the sayd 
company and ffor the good government * * * of 
the people." 76 



75 Town Govt, of R. I. (Foster), p. 19. 

76 Poore's Charters and Constitutions, p. 1597. 

Yet so apprehensive were the towns of any tendency to drift 
away from "the people" that the election of delegates to this 
body was to recur as often as once in six months. For no 
longer time were the towns willing to entrust the manage- 
ment of their affairs to the body which they themselves had 
created. "Another feature of no less importance in this con- 
nection is the attempt, made with great determination and per- 
sistency, to connect this semi-annual session of the colonial 
government as really and fully as possible with the actual, 
individual, undelegated suffrages of every citizen of every town. 
At the outset, in so small a colony as this, it was possible; and 
twice a year, therefore, in May and October, the citizens them- 
selves of Providence, Warwick, of Portsmouth — of whatever 
part of the state — assembled in person at Newport, and there 
in solemn council cast their votes for those who they decreed 
should deliberate for them for the ensuing six months. This 
over they returned to their houses, having inaugurated the 



6Q THE GROWTH OF DEMOCRACY. 

A fourth essay at government building by voluntary 
association was made in 1638. The first government at 
New Haven has been called a theocracy, having Daven- 
port and Eaton, as the representatives of God, at its 
head. Without doubt its object was largely industrial, 
and from an industrial standpoint the relation of its va- 
rious members was akin to that of a voluntary joint 
stock company. Though Davenport and Eaton were 
the head of the company, "they did not presume to act 
without bringing together, from time to time, the free 
planters of the colony and with the legislation of such 
democratic assemblies the records of New Haven Town 
and Colony begin." 77 While little is known of the first 
government of New Haven, we do know that the basis 
of their political organization was a compact made on 
"the first day of extraordinary humiliation," after they 
came together, in which they agreed that "in all publique 
offices wch concerne civill order, as choyce of magis- 
trates and officers, making and repealing of lawes, divid- 
ing and allotment of inheritance, and all things of like 
nature," they would all of them be ordered by the rules 
which the scriptures hold forth. On June 4th, 1639, at 
Mr. Robert Newman's barn, "all of the free planters 
assembled together in a generall meetinge to consult 
about settling civill government." 78 

On October 25 of that year a committee of seven men 
qualified for the foundation work of organizing a gov- 
ernment having been appointed, the state took definite 



session, so to speak, and left it to run of itself for the remainder 
of the time. Of course, the natural tendency of any such system 
as this was to a gradual modification, by reason of inconven- 
ience and even impossibility of personal attendance, in many 
instances; and this was met by a gradual introduction of the 
system of proxy votes.. But the votes of the citizens, personal 
and proxy, continued to be cast, at Newport, until 1760." — 
Town Govt, of R. I., pp. 25-6. 

77 Cf. Livermore, Republic of New Haven, p. 14 

78 Cf. Livermore, Republic of New Haven, p. 17. 



GOVERNMENT IN THE COLONIES. 61 

form. 79 Eaton, Davenport and five others were the 
"seven pillars" for the new house of wisdom in the wil- 
derness, and these seven met together, abrogating every 
previous trust, admitting to the court all church mem- 
bers, 80 established a government consisting of a govern- 
or, deputy, magistrates and two delegates elected by the 
freemen from each plantation. The legislature consist- 
ing of all these officers, was entirely representative, and 
was declared to be "the supreme power, under God, of 
this independent dominion," and had authority "to de- 
clare, publish and establish the laws of God, the Su- 
preme Legislator, and to make and repeal orders for 
smaller matters not particularly determined by the scrip- 
tures, according to the general rules of righteousness; 
to order all affairs of war and peace and all matters 
relative to the defending or fortifying of the country; to 
receive and determine all appeals, civil and criminal, 
from any inferior court, in which they are to proceed 
according to Scripture light, and the laws and orders 
agreeing therewith." 81 Other towns, together with their 
territory, were annexed to New Haven by treaty and 
purchase, 82 and later the governments of New Haven 
and Connecticut were federated under a common charter 
and constitution. 83 

The government of New Haven, prior to its federa- 



79 Republic of New Haven, p. 22. Bancroft gives the time as 
August. See Vol. I, p. 272. 

80 Bancroft, I, p. 272. 

81 Story on the Const., Sec. 85. • 

82 "In this manner five independent and co-ordinate towns 
were formed. The neighboring towns of Milford and Guilford, 
bought in 1639, were independent at first, but admitted by the 
general court in 1643. Stamford bought in 1640, was admitted 
1641, Southold, L. I., bought 1640 and admitted 1649. Green- 
wich was also bought in 1640, but the Dutch seduced the pur- 
chasing agents into making it a Dutch town." — The Genesis of 
a New England State, p. 22, 23. 

83 The Genesis of a New England State, p. 26-7; Republic of 
New Haven, p. 156. 



62 THE GROWTH OF DEMOCRACY. 

tion with Connecticut had been purely a government 
by compact. It had been evolved from the community 
itself. There had been no dependence on, no recogni- 
tion of a higher power except the Supreme Being. 

Since Vermont is a much later establishment, we will 
do nothing more than to assign it a place within the 
classification adopted as a voluntary association. 84 In 
the history of the voluntary association, therefore, we 
have the modern representative government, with all its. 
essential forms and functions, evolved from a pure de- 
mocracy. Beginning with pure democracy, as popu- 
lation increased and its territorial area enlarged, as the 
demands of society grew, it became economically p im- 
possible for the people in assembly to make the laws and 
carry on the other functions of government. It became 
necessary with every change in the social environment 
to recast its political institutions in such a manner as to 
subserve the public welfare. It has been found that 
pure democracy could not exist and serve the needs of 
government over large areas and populations. Repre- 
sentative government is the device of a free democratic 
society to that end. The governments of the voluntary 
associations are truly a product of environment, their 
growth an adaptation, operating under "the law of ad- 
vantage." 

But feudal Europe gave us a fifth model for colonial 
government — the proprietary. The voluntary associa- 
tion had been the product of the Puritan congre- 
gation taken out of the settings of the old world and 
brought face to face with nature and the necessity of 



84 The communal town of Guilford, Vermont, furnishes a 
parallel to the Rhode Island and New Haven governments, in 
so far as it carried on and exercised the political functions of an 
independent sovereign state for many years. The unprinted 
manuscript of Miss Dora Wells on file in the Library of the Uni- 
versity of Chicago, title: "The Republic of Guilford," affords 
a reliable account of this primitive community. 



GOVERNMENT IN THE COLONIES. 63 

maintaining social order. The period during which it 
was permitted to grow unhampered by royal preroga- 
tives and arbitrary assumptions was one of popular agi- 
tation and political revolution in England. The proprie- 
tary was the product of conservatism. It was an ante- 
Puritanic form. When Protestantism was persecuting 
those of Roman Catholic faith and they sought relief 
in the wilds of the western continent, their conserva- 
tive spirit and training led them to retain established 
forms, and established forms found expression in the 
proprietary. After the Restoration the proprietary be- 
came the principal agency by which new colonial enter- 
prise was conducted. 85 It was a reaction against Puri- 
tanism. The territory of Maryland had, originally, been 
ceded to the London Company, but with the withdrawal 
of the charter of that corporation and its dissolution 
all sovereign rights had reverted to the Crown. In the 
year 1632 a patent was granted to Lord Baltimore. 
Under this patent he was made lord proprietor, with 
authority, by and with the consent of the freemen or their 
delegates assembled for the purpose, to make all laws 
for the province, "so that such laws be consonant to 
reason and not repugnant or contrary, but, as far as 
conveniently might be, agreeable to the laws, statutes, 
customs and rights of the realm of England." 86 

The colony consisted of 200 gentlemen of fortune and 
rank, with their attendants. 87 The first legislature, 
1634-5, was made up of the freemen at large gathered 
in popular assembly, 88 but by 1638 the colonists had so^ 
largely increased and had become so widely scattered on 

85 All of the proprietary establishments that proved of last- 
ing importance except one, Maryland, were founded during 
the period of the Restoration. — H. L. Osgood, Am. Hist. Rev. 
II, 648. 

86 Poore, Charters and Constitutions, p. 809. 

87 Story on the Constitution, Vol. I, Sec. 106. 

88 Bancroft, Vol. I, p. 162. 



64 THE GROWTH OF DEMOCRACY. 

plantations and manorial estates that the representative 
assembly became a necessity. 89 The legislature, once 
set in motion, gradually assumed more and more of the 
legislative powers of government. 90 In 1650 it declared 
that no taxes should be levied without the consent of 
the General Assembly. 91 The revolt against absolutism, 
in England, seems to have had its effect on the colonies. 
With the revolution of 1688 the executive powers were 
seized by the Crown, but it was again in 1716 restored 
to the proprietary, 92 limited, however, by the encroach- 
ments of the representative legislature. The people of 
the colony, having gained control of legislation, pre- 
scribed the powers of the proprietor and the administra- 
tive departments in such a manner as to make them 
conserve the interests of the colony. In this capacity 
the proprietor served the colony till the American Revo- 
lution. 

In 1664 Charles II. granted unto his "dearest brother 
James, Duke of York," that territory, which, in the 
main, constituted the States of New York, Vermont, 
New Jersey, and Delaware, "with all ye lands, islands, 
soyles, rivers, harbours, mines, minerals, quarryes, 
woods, marshes, waters, lakes, ffishings, hawking, hunt- 
ing, and fowling, and all other royalltyes, profBtts, com- 
modityes, and hereditaments to the said severall islands, 
lands and premises." Grants of power were also made 
to the proprietary or his assigns as follows: 

And we do further of our special grace, certaine knowl- 
edge and meere mocon (motion) for us our heirs and 
successors give and grant unto our said dearest brother 
James Duke of Yorke, his heirs, deputyes, agents, com- 



89 Story, Vol. I, Sec. 107. As to the character of the code 
adopted see Doyle, "Virginia, Maryland and the Carolinas," 



90 Doyle, Id., p. 313-27. 

91 Bacon's Laws of Md., 1650, ch. 25. 

92 Bacon's Laws of Md., 1692, 1716. 



GOVERNMENT IN THE COLONIES. 65 

missioners and assigns by these presents, full and abso- 
lute power and authority to correct, punish, pardon, 
goverene and rule all such the subjects of us, our heirs 
and successors (as) from time to time adventure them- 
selves into any of the parts or places aforesaid or that 
shall or doe at any time hereinafter inhabite within 
the same according to such lawes orders ordinances, 
direcions and instruments as by our said dearest brother 
or his assigns shall be established, and in defect thereof, 
in cases of necessity, according to the good direccons of 
his deputyes, commissioners, officers and assignes re- 
spectively as will in all cases and matters capitall and 
criminall as civill both .marine and others soe alwayes 
as the said statutes ordinances and proceedings be not 
contrary to but as near as conveniently as may be agree- 
ables to the lawes, statutes and government of this our 
realme of England, and saving and reserving to us, our 
heirs and successors, ye receiving, hearing and deter- 
mining of the appeal, or,. appeals of all or any person or 
persons, of in or belonging to ye territoryes or islands 
aforesaid, in or touching any judgment or sentence to 
be there made or given. 93 

The usual authority was also given to exercise mar- 
tial law in case of rebellion, insurrection or invasion. 

In June of this year, that part of the territory subse- 
quently known as New Jersey, was by the Duke, granted 
to Lord Berkeley and Sir George Carteret. In 1682 the 
Duke released his claim to Delaware to William Penn. 
The claim of New York to Vermont was not settled till 
after the Revolutionary war. s 

In the war between England and Holland, 1665- 1674, 
the title of New York was first confirmed in the English 
by the treaty of Breda, 1667; it was again retaken by 
the Dutch, but finally restored to the English by the 
treaty of Westminster in 1674 and a new grant made 
by Charles II. to the Duke of York confirming his pro- 
prietary rights under which he ruled the province till 



93 Poore's Charters, p. 784. 
5 



66 THE GROWTH OF DEMOCRACY. 

called to the throne of England, when it became a Crown 
province. 

When the Duke established his government in New 
York he found there a government already in operation. 
Although beginning as a monopoly enjoyed by com- 
paratively few, the government under the Dutch had 
become, in a measure, representative. 94 The people, 
under the proprietary, felt the restraint of their rights, 
and a general demand arose for. a popular voice in gov- 
ernment, but this was not accorded till 1682, when the 
governor was authorized to call an assembly, with power 
to make laws for the general regulation of the state, 
subject to ratification by the proprietary. After the 
English revolution of 1688, which deprived James II. 
of his crown, the people, having taken side with the 
Prince of Orange, William III., were deemed to have 
the privileges of his subjects. In 1691 an assembly was 
called which framed a constitution. This constitution 
provided that the supreme legislative power should for- 
ever reside in a governor, a council, appointed by the 
Crown, and representatives of the people convened in 
general assembly. 95 With the accession of James to 
the Crown the proprietary had ceased and the colony 
was organized as a royal province on a representative 
basis. 

New Jersey was a part of the territory granted to 
the Duke of York and by him in turn, June, 1664, 
granted to Lord Berkeley and Sir George Carteret, with 
all of the rights, royalties and powers of government 
which he possessed. In 1664 these proprietors agreed 
upon a constitution of government "which was so much 
relished that the Eastern part soon attained a consider- 
able population." The governmental structure consisted 



94 Dutch Village Communities in the Hudson, p. 19 et seq. 

95 Laws 1691. 



GOVERNMENT IN THE COLONIES. 67 

of a governor and council, with appointing power, and 
a general assembly, composed of the governor, council 
and deputies chosen by the people. This general assem- 
bly had full power to make laws, for the government 
of the province "so that the same be consonant with 
reason and as near as may be conveniently agreeable 
to the laws and customs of His Majestey's realm of 
England," to constitute courts, to levy taxes, to erect 
manors and forts, etc. Although the territory and gov- 
ernment was divided between the proprietors (1676), and 
the proprietary interests, later, were transferred by as- 
signment, the form of government remained almost the 
same till surrendered to Queen Anne (1702), when it was 
again united in one province, the chief executive and ad- 
ministrative functions being placed in the hands of a 
governor and council appointed by the Crown, the legis- 
lative remaining with a General Assembly of representa- 
tives with power to make all laws and ordinances for the 
welfare of the people. 

The history of Pennsylvania begins with the grant of 
1 68 1, made by Charles II. to William Penn. By this 
grant he was made proprietor and authorized "to make 
all laws for raising money and other purposes with the 
assent of the freemen of the country or their deputies 
assembled for that purpose." In 1682 Penn published a 
"frame" which provided for a government composed of 
governor, council and assembly. This "frame" was 
renewed with slight modifications in 1683 and 1696. 
The government established was representative in the 
legislature, the Assembly being made up of delegates 
chosen by the freemen of the counties. The subsequent 
changes were in the nature of enlargement of the powers 
of the people and their representatives and the reduction 
of those of the proprietor and his appointees until, 
though proprietary in form, the people enjoyed the same 
liberties as did the other colonies as royal provinces. 



68 THE GROWTH OF DEMOCRACY. 

Delaware needs no further account here than that its 
territory was ceded to Penn by the Duke of York and 
that its government was exercised under the same pro- 
prietary as that of Pennsylvania, with practically the 
same powers and modifications. 

The institutional beginning of the New Hampshire 
colony was in 1629. Its character was fixed by a pro- 
prietary grant to Captain John Mason, by which he was 
to "establish such government in the said portion of 
lands and islands granted unto him as shall be agreeable, 
as near as may be to the Laws and Customs of the 
Realm of England." 06 In 1635 a fourth grant was made 
to Mason, by which the land with all its uses, and all 
"Royalties, jurisdictions, privileges, preheminences, prof- 
its, comoditys and hereditaments whatsoever, * * * 
with powers of judication in all cases and matters what- 
soever, as well criminal, capitall, and civil," were ceded. 97 

A controversy arose over the boundaries, upon which 
the matter came before the King in council, and in 1679 
the government of New Hampshire passed over to the 
Crown and there was established a form by which the 
executive power was vested in a president and council 
appointed by the Crown, the administration of justice 
conducted according to "the form of proceedings in such 
cases, and the judgment thereon be as consonant and 
agreeable to the laws and statutes of this our realm of 
England as the present state and condition of our sub- 
jects inhabiting within the limits aforesaid * * * 
will admit," and the legislative power was given to an 
Assembly composed of president, council and repre- 
sentatives chosen by the towns. 98 The Assembly made 
up as above set forth, was authorized to levy taxes and 
make all laws for the interest of the province. This 

96 Poore's Charters, Vol. II, p. 1272. 

97 Poore's Charters, Vol. II, p. 1273-4. 

98 N. Hampshire Prov. Laws, Ed. 1771, p. I et seq. 



GOVERNMENT IN THE COLONIES. 69 

form of government was continued down to the revolu- 
tion. 

The political history of the Carolinas begins in the 
year 1663." In that year eight patentees 2 obtained a 
grant to all the land between the southern boundary of 
Virginia and the St. Mathias river in Florida. It gave 
to the proprietors sovereignty over the territory, making 
reservation only that the inhabitants should "be subject 
immediately to our Crown of England, as depending 
thereof forever." 3 There were settlers in the territory 
at the time. These, together with those who subse- 
quently came, are classified by Doyle as forming four 
groups : 4 

1. A settlement from Virginia on Albemarle river, 
which became the nucleus of North Carolina. 

2. A settlement from New England near Cape Fear 
which dispersed and was absorbed in No. I. 

3. A settlement from Barbadoes, also near Cape 
Fear. 

4. A settlement from England at Charlestown. 



99 In 1629 Sir Robert, afterwards Chief Justice, Heath, ob- 
tained from Charles I, a grant to the lands south of Virginia. 
His object was to divide the territory into smaller tracts and 
sub-let it to others who were to manage the details of set- 
tlement. This should not be included as a part of the political 
history for two reasons: First, it was a land grant, and sec- 
ondly, it was a failure and the grant was finally cancelled. 

2 The patentees appearing in the charter were: "Edward, 
Earl of Clarendon, our High Chancellor of England, and 
George, Duke of Albemarle, master of our horse and captain 
general of all our forces, our right trusty and well-beloved Will- 
iam Lord Craven, John Lord Berkly. our right trusty and 
well beloved Chancellor, Anthony Lord Ashley, Chancellor of 
our exchecquer, Sir George Carteret, Knight and Baronet, vice 
Chamberlain of our household, and our trusty and well beloved 
Sir William Berkley, Knight, and Sir John Collerton, Knight 
and Baronet. — Poore's Constitutions, p. 1382. 

3 Poore's Constitutions, p. 1389. 

4 Doyle, Id. p. 331. 



70 THE GROWTH OF DEMOCRACY. 

This more than once changed its site, absorbed No. 3 in 
the course of its wanderings and finally grew into South 
Carolina. 

Two Governors were appointed, one over the settle- 
ments to the north and the other over those to the south 
of the Chowan river. 5 These Governors were to have 
power to appoint all officers except secretary and sur- 
veyor, and to make laws with the consent of the free- 
men. In 1667 the proprietors adopted a constitution 
which provided for government on the ancient feudal 
basis. 6 

The government was to be a territorial aristocracy 
with the proprietors at its head. The eldest of them was 
to take rank as Palatine, with a certain limited pre- 
eminence. At his death this rank was to devolve on the 
proprietor next in age. The whole country was to be 
divided into counties, each consisting of eight seniories, 
eight baronies and twenty-four colonies containing 
twelve thousand acres apiece. Of these the seniories 
were to pertain to the proprietors, the baronies to the 
subordinate nobility, the colonies to the commonality. 
Each proprietor was to hold one seniory in every county. 
The nobility below the proprietors was to consist of 
landgraves, one from every county, holding four baron- 
ies each, and caciques, two for every county, holding two 
baronies each. These dignitaries were to be nominated 
by the proprietors. * * * 

The executive power and the judicial power was vested 
in the proprietors, each of whom was to be an officer of 
state. The titles of the seven below the Palatine were 
to be chancellor, chief justice, constable, admiral, 
treasurer, high steward and chamberlain. * * * 
Each of these officers of state was to be assisted by a 
count.* * * In addition to these seven counts, the 
whole body of eight proprietors was to sit under the 
title of the Palatine's court. * * * The Grand Coun- 



5 Afterwards known as Albemarle. See McCrady, pp. 74-5. 

6 Locke's Constitution. See Poore, p. 1396. 



GOVERNMENT IN THE COLONIES. 71 

cil was to consist of the whole body of proprietors and 
councilors from the various courts. 

The remaining legislative powers were vested in the 
Parliament. This was to consist of all the proprietors 
or their deputies, the landgraves, caciques, and the rep- 
resentatives of the freeholders. In addition, lords of 
manors were empowered to hold leet-courts. 7 

One can scarcely imagine a more arbitrary plan of 
government. The Crown having assumed sovereignty 
over the territory, granted jurisdiction to his favorites. 
These favorites then set about to secure their power by 
all of the fictions of absolutism known to the govern- 
ment — feudal tenure, hierarchy, nobility, on the one 
hand, tenantry, subordination, slavery, on the other; and 
in order to train the conscience to the support of these 
institutions, an established church under the control of 
the nobility. 8 It reminds one of the establishments of 
William the Conqueror, except that the proprietors had 
not the adaptability of the Norman. They elaborated a 
plan suited only to a large and densely populated coun- 
try, such as the one in which they had lived, instead of a 
simple organization adapted to colonial conditions. It 
is needless to say that their finely devised scheme was not 
a success. If they had conquered a territory thickly set- 
tled with civilized people and had made its inhabitants 
their serfs and subordinates; if there had already been de- 
veloped an industrial foundation sufficient to support 

7 Doyle "The Carolinas," pp. 335-7. 

8 The influence of such a regime appears from the fact that 
in many places the slave population from the beginning was 
twice as large as the free, and of the free but a fraction were 
freeholders. Not only was the negro used as the basis of a 
servile industrial population, but the Indians, natives of the 
soil, were pressed into service. "The Indian," says Doyle, p. 
3S9> "was kidnapped and sold, sometimes to work on what had 
once been his own soil, sometimes to end his days as an exile 
and bondsman in the West Indies. As late as 1708 the native 
population furnished a quarter of the whole body of slaves." 
But even these measures did not give sufficient foundation for 
the successful operation of Locke's constitution of government. 



72 THE GROWTH OF DEMOCRACY. 

such a superstructure of parasitic nobility, then it might 
have been a success; but conditions in the colony were 
such as to absolutely forbid. One and only one part of 
the fundamental constitution was put in force at the 
outset. Each proprietor nominated a deputy. The col- 
ony was divided into four precincts, each of which, by a 
temporary arrangement, was to return four members. 
A Parliament, however, was not held, and the colony 
continued to be governed by the council till popular 
pressure became too strong to resist. The constant ef- 
fort on the part of the proprietors to assert claims under 
the constitution which were adverse to the interests of 
the planters led to turmoil and revolution. Slight modi- 
fications were made in the constitution in 1670 and 1682 
to no avail. In 1698 still greater modifications were 
made with a design to bring the constitution more in 
harmony with the needs of the people. But the influ- 
ence and authority of the proprietors was lost. In 1729 
the proprietary government, such as it had been, came to 
an end. The Crown purchased the rights and the de- 
mands of the colonists were satisfied by the establish- 
ment of a Crown government with a local representative 
system. Later, 1732, the territory was, for convenience, 
divided and the two royal governments of North and 
South Carolina were established on practically the same 
basis as the other colonies. 9 

In the American colonies we find an epitome of the 
development of the modern state. Of these, those col- 
onies which were not established upon the basis of ex- 
isting, old world, institutions, being small, isolated, in- 
dustrial communities whose chief advantage in organiza- 
tion was that of controlling nature and making it sub- 



9 The proprietary in all of the colonies where established 
found itself ill adapted to American conditions. Its whole his- 
tory was one of modification and adaptation which finally 
wrought a complete extinction of the institution. 



GOVERNMENT IN THE COLONIES. 73 

servient to their wants, found their economic interests 
best served by a purely democratic government in which 
the people came together, discussed matters of mutual 
concern and acted in such manner as seemed to the 
highest well-being of all. But with the multiplication of 
these small industrial groups, with broader organization 
made possible, common dangers and common interest 
made it advantageous for them to unite, and, uniting, it 
became necessary to recast their institutions in such a 
manner as to conserve the welfare of a larger society. 
In adapting their polity to the interests of a numerous 
population, distributed over a wide area, the principle of 
local self-government was retained for the local units and 
the principle of representation was established for the 
central organism, while the desire for security, in their 
possessions and in their industrial polity, against the de- 
signs of larger and more powerful political organizations 
moved them to place themselves under the protection of 
English sovereignty by procuring charter grants. Those 
colonies which were at first established under charter 
grants found themselves under the same political and 
economic necessity of moulding their polity so as to con- 
form to the principle of general welfare. The private 
corporation, as a superior, controlling political agent, be- 
came extinct; the feudal organization expired; the pro- 
prietary lord found it necessary to adopt the principles 
of representative self-government and finally to give 
way — to yield his executive power to the direct repre- 
sentative of the Crown; the corporate establishment, that 
based on the principle of the joint stock company, was 
forced to turn over the reins of government to the po- 
litical people. On the one hand, therefore, we find 
the modern industrial state developed from a democratic, 
self-organized, self-governed, local industrial commu- 
nity; on the other hand we witness its reduction from the 
establishments of monarchy and the polity of conquest; 



74 THE GROWTH OF DEMOCRACY. 

both meet in the adoption of a common form of repre- 
sentative government, subservient to the economic in- 
terests of the people, a form of government operating 
under the protection of the sovereignty of Great Britain. 
In lands where kings have fought for wounded pride, 
where dreams of conquest and empire, the code duello, 
the spirit of chivalry and other remnants of absolutism 
have played a leading part in affairs of state, the indus- 
trial interests have often been lost sight of. Here in 
America the industrial forces of society, from necessity, 
were dominant in the beginning, and since that time 
have been the leading factors in every new political 
formation. This being the prime motive of our society 
in the establishment of government, its politv being 
based on the general welfare, all assumptions of sov- 
ereignty on the part of England which were opposed to 
this interest were resisted with united force. Finally 
the thirteen colonies, having won their independence 
from the absolutism of the British colonial policy, for 
the purpose of furthering their economic interests by 
establishing for themselves a broader sovereigntv ad- 
justed to their economic well-being, organized under a 
federal constitution and provided for the admission of 
other States on the same footing. Instead of that sov- 
ereignty being vested in a King, it was retained by the 
people whose interests it was organized to protect. The 
sovereignty of each separate State had, during the con- 
federacy, been in the people of that State. Now the sov- 
ereignty of the United States was in the people of the 
empire. The exercise of its functions was apportioned 
among the Federal and State governments in such man- 
ner as the people of the United States in the formation 
and adoption of their constitutions adjudged to be to 
their highest welfare. 10 In the organization of their gov- 



10 For further discussion of this subject see Chap. IV. 



GOVERNMENT IN THE COLONIES. 75 

ernment and the apportionment of the exercise of sov- 
ereign powers the people retained to themselves a place; 
they, to that extent, incorporated themselves in and be- 
came a part of the government. Among the powers the 
exercise of which the people retained to themselves are 
the following: 

(i) The right of altering and abolishing any form of 
government which was opposed to the general welfare 
and of "organizing its powers in such form as to them 
seems most likely to effect their safety and happiness." 

(2) The right of appointing (electing) officers and 
agents of government to perform those functions which, 
under the constitutions adopted by them, were to be 
performed by their representatives. 

(3) The right to impress their will on the agents of 
government. 

(4) The right to participate in certain acts of legisla- 
tion and administration in which they deemed to their 
best interest to have a direct voice. 

It is with the evolution of popular co-operation in 
these capacities that the chapters following have to do. 



76 THE GROWTH OF DEMOCRACY. 



CHAPTER III. 

GOVERNMENT BY POPULAR ASSEMBLY, OR PURE 
DEMOCRACY; ITS EVOLUTION AND PRES- 
ENT PLACE IN OUR SYSTEM. 

The growth of our institutions during the colonial 
period, was from the smaller to the larger political 
whole. The primitive plantation grew. The colonial gov- 
ernment, which at first was coterminous, with a single 
town or settlement, came to include several. The prim- 
itive settlement evolved the commonwealth. Finally, 
the several commonwealths, by federation, became an 
empire. In this federation that polity which seemed 
best adapted to the welfare of the local community was 
retained by it; that more general polity which seemed 
best adapted to the welfare of the several States (com- 
monwealths) was retained by them; while for the fed- 
eration (the empire) a still broader polity was established 
for the purpose of conserving the welfare of the feder- 
ated whole. 

In all this complex system, elements of pure democ- 
racy may be found from its inception. Popular co- 
operation in government has appeared in two forms, 
viz.: Co-operation by popular assembly, or in pure 
democracy, and co-operation in election and by what has 
become known as the referendum, 1 or in representative 
democracy. It is the form of co-operation first named 
that attracts our attention during the colonial period. 
The township, the parish, the tithing, the unincorporated 
town, the hundred, the manor, the borough, the county, 
and, in the very earliest times the central government 



1 For definition of the referendum, see Chap. IV, p. ioo, n. 2. 



THE POPULAR ASSEMBLY. 77 

of the colony, are political divisions in which the people 
themselves assembled for the purpose of exercising func- 
tions of government. The colonies in which all of the 
political people assembled in a public capacity were 
Rhode Island, Plymouth, New Haven, Massachusetts 
Bay and Maryland; but, as shown above (pp. 5362) 
when the population became numerous and the area 
of distribution large this form of central government 
was abandoned. 2 

In most of the colonies the counties grew up as an 
administrative and judicial division instead of a legis- 
lative unit and the evidences of acts of government 
therein by popular assembly are few. In Virginia, how- 
ever, where there was no township and very little mu- 
nicipal organization, the people at times took an active 
part in the county courts. These county courts, fol- 
lowing the English example of the close corporation — 
the closed vestry — till 1662, made no provision for popu- 
lar activity except in election of burgesses; but in that 
year, by legislative act, it was made necessary to submit 
the laws enacted for the county to the people assembled 
at these general courts. 3 In- 1679, however, this priv- 
ilege was withdrawn and provision made for parish rep- 
resentatives to sit with the justices of the peace to make 
laws for the county. 4 Thereafter little or no trace of the 



2 The facility with which the Americans adapted their insti- 
tutions to their environments is a quality which peculiarly fitted 
them for the development of a government in harmony with the 
general welfare. The fact that Rome had not this facility was 
one of the chief causes of her political decay. The Roman state 
began with government by popular assembly. When the po- 
litical conditions became adverse to the successful operation of 
such a system it still retained the popular assembly with the 
result that the state was finally governed by the mobs and 
aggregations of idlers that swarmed about the capital. In 
America new conditions evolved new adaptations suited to the 
welfare of the state. 

3 Colonial Laws, 1662, II Henning, 171-2. 

4 Colonial Laws, 1679, II Henning, 441. 



78 THE GROWTH OF DEMOCRACY. 

use of the popular assembly is found in the Virginia 
county other than as an electorate. 

In States where the borough existed it became merged 
into the city or the county; if acts of government by 
popular assembly were ever exercised at all in these this 
form was abandoned at an early date. 5 

It is probable that in Maryland and in some of the 
other proprietary colonies where the manor was the local 
political unit that by-laws were enacted by popular as- 
semblies in the court leet. 6 This system, however, ex- 
pired at a comparatively early date. With the with- 
drawal of the political rights of the proprietary, the court 
leet, in its feudal relation came to an end. 

The history of the hundred, in most of the colonies, is 
little more than the history of a name; 7 except in Mary- 
land it had little or no legislative function. In Mary- 
land, by the act of 1649, tne assembly of freemen in each 
hundred is recognized "as a general folk-moot" with 
power to enact and enforce local ordinances relating to 
the common safety. 8 Except where the hundred has as- 
similated the functions of the township, as in Delaware, 
it is no more. 

In some of our States the parish still remains as a po- 



5 See Holcom, Pennsylvania Boroughs; Allen and Penrose, 
Philadelphia. 

6 See Johnson, Old Virginia Manors; Wilhelm, Local Insti- 
tutions of Maryland, p. 28 et seq. 

7 In Delaware the hundred was the name given to the poli- 
tical subdivision similar to the township and became a perma- 
nent part of the government. Howard, I, p. 282. 

s "The hundred of Maryland was a living organism, in char- 
acter reminding one far more of the institutions in the days 
of Eadgar than in those of the Stuarts. The 'court' for the 
election of burgesses or assessors, the assembly for the en- 
actment of by-laws and even the meeting to frame petitions 
to the assembly or indict an address to the king, each dis- 
charged the function of the real folk-moot thus in part sup- 
plying the place of a town meeting for the purpose of self- 
government." Howard, p. 281. See, also, Local Institutions 
of Maryland, p. 39, et seq. 



THE POPULAR ASSEMBLY. 79 

litical organ similiar to the township. 9 At the time of 
the colonization of America the terms parish and town- 
ship were almost synonymous in their institutional sig- 
nificance and included both civil and ecclesiastical func- 
tions. 10 In New England, where, for economic reasons, 
the populations were more gregarious, this local organ- 
ism received the name of town, while in Virginia and the 
South, where for like reason, the populations were more 
scattered, it received the name of parish. 11 The indus- 
trial conditions of the two sections were different, their 
politics were different, and their political adaptations 
varied accordingly. In Virginia the parish became a close 
corporation, while in North Carolina, South Carolina 12 
and Maryland 13 it was representative. Popular assem- 
blies had little or no place in this form of local govern- 
ment except as such assemblies might act as an elec- 
torate. 14 

The most important political organisms from the 
standpoint of government by popular assembly are the 
(unincorporated) town and the township. Both had a 
common origin in New England. With the growth of the 
colonies, the one became adapted to the conditions of 
urban life and the other to the interests of the rural com- 
munity. Typical of the early form are Cape Ann, Salem, 
Plymouth, Duxbury and many of the Connecticut towns. 



9 The parish in Louisiana corresponds to the county. 

10 In New York the dual character of this primary body was 
recognized in its organization. The duties of the constable and 
overseers of the town being different from the duties of the 
constable, overseers and church wardens of the parish. Howard, 
I, p. 117. 

11 Henning, I, 122, 125-6. 

12 Local Govt, in S. C, Ramage. 

13 See Parish Inst, in Md., Ingle. 

14 The statutes of Virginia, 1623-4, provide for action of a 
major part of the freemen of the parish to dispose of corn from 
the public granary, and by the laws of 1662, the parish was so 
organized that by-laws could be proposed by the vestry, subject 
to confirmation of the people. 



80 THE GROWTH OF DEMOCRACY. 

On their civil side they were organized with direct ref- 
erence to the industrial interests of the general com- 
munity; they held their lands in common, in some in- 
stances shared in its fruits ; they cultivated such fields and 
occupied such homesteads as were allotted ; they enjoyed 
common pasture, meadow, wood, etc. No one could be- 
come a citizen of the town and a participant in its econ- 
omy without formal action of the freemen. Many of 
them had a military organization, but this was usually a 
distinct organism subordinate to the civil power in mat- 
ters pertaining to administration, although supreme in 
military affairs. 

In New York, also, the village community took root 
and grew. 15 There the institutions of feudalism had 
been transplanted from the old world by the Dutch and 
fostered at a later date by the English under the regime 
of a proprietary. According to the rules of the Dutch 
West India Company, all persons who, within four years 
after giving notice to any chamber of the company, 
should plant a colony of fifty persons over fifteen years 
old should be acknowledged as patroons and be "per- 
mitted at such places as they shall settle their colony to 
extend their limits four miles along the shore — that is, 
on one side of a navigable river or two miles on each 
side of a river and so far into the country as the situation 
of the occupiers will permit." The colonists — that is, 
those who came with the patroons — had no rights of 
self-government and were required to serve the patroon 
during the term for which they were bound. The rights 
granted to the patroons were numerous. The land was 
granted in perpetual inheritance, together with the 
"fruits, rights, mines and fountains thereof; a monopoly 
of the fishing, fowling and grinding," and the lower ju- 
dicial jurisdictions. Such a polity was not suited to the 



15 Howard, I, p. 104-6; Elting, Dutch Village Communities. 



THE POPULAR ASSEMBLY. SI 

atmosphere of the new country. It was felt to be op- 
pressive and opposed to the best interests of the com- 
pany as well as of the colonist. In 1640, in order further 
to encourage industry, the company granted a new 
charter, modifying the privileges of the patroons, offer- 
ing smaller grants of lands to colonists and also provid- 
ing that in case the settlements of masters and free col- 
onists should increase so much as to become towns, vil- 
lages and cities that the company would confer munic- 
ipal privileges of self-government on them. A large 
number of villages sprang up, and "each village had its 
'boueries,' or house lots, its common fields, or pastures, 
and its folk-moot for the ordering of its domestic affairs." 
As in the old world during the Middle Ages, self-govern- 
ment in New York had its origin in the free city. After 
the assumption of government by the Duke of York 
the charters, patents and privileges of all cities, manors 
and towns were confirmed. 10 



16 Howard, I, no: The village community was not estab- 
lished in many of the colonies having a predominant feudal 
polity. In the southern states the economic conditions were 
unfavorable to the formation of towns and villages. The force 
of this fact is well illustrated in Virginia. There the first towns — 
Jamestown and Henricopolis — were soon left to decay, the in- 
habitants having scattered out on the plantations for the pur- 
pose of cultivating tobacco for export. (See Bruce's Economic 
Hist, of Va., p. 527). In 1617, Jamestown was reduced to five 
or six buildings. (Id. 530.) "When Yeardley arrived in Vir- 
ginia in 1619, not only was Jamestown in a state of great de- 
cay but Henrico, also, and the adjacent settlements. There 
were at Henrico a few houses all of which had gone to ruin. 
* * * The condition of Coxendale and Arrahattock resembled 
that of the houses of Henrico and Jamestown; there were only 
six houses in Charles City." (Id. 530). "Under Yeardley's 
management the population of Jamestown by 1623 was increased 
to 182. (Id. 531). This year, in order to further encourage 
building there, every ship arriving in Virginia waters was for- 
bidden to break cargo before reaching Jamestown. This order 
had little effect, however, on account of evasions. In 1878, the 
governor and council decided that there was only one way 
of encouraging town building, viz., by confining the local trad- 
ing to certain points. (Id. 583). In 1642 Gov. Berkley, under 
directions from the home government, undertook a vigorous 
policy of town building. (Id. 534-8). In 1661-2 the general 
6 



82 THE GROWTH OF DEMOCRACY. 

These communities had settled in open spaces, on 
grassy areas or abandoned corn fields. But with the 
growing necessity of the community to clear new lands, 
with the desire to occupy the rich outlying territory, 
with the opening of roads and other means of transit 
and traffic, with the diversity of industry and the conse- 
quent growth of commerce and manufacture, individual 
property and the private initiative came to be of greater 
advantage. As a proprietary industrial organism the 
village community broke down; but politically it was re- 
tained. In the rural districts it took on the form of the 
township, in the urban districts that of democratic town 
government. These are the two forms of government 
by popular assembly that have come down to us from 
colonial days. 17 Their history is an interesting one, in- 
teresting not only because they are the only survivals of 
government by popular assembly but also because in 
these two forms we see in active operation the principles 
which account for the growth as well as the decadence 
of this institution. 

With the growth of the unincorporated town or village 
in population and wealth sooner or later a point is 
reached where government by popular assembly is not 



assembly passed an act requiring all ships arriving in James 
River to go to Jamestown and the planters to transport their 
goods thence. Yet in 1675 Jamestown consisted only of twelve 
or fourteen families (tavern keepers). After the arrival of Cul- 
pepper in 1680, an act was passed to lay out towns in the 
various counties, offering lots at a nominal price, and some 
twenty sites were selected. This was followed by "An Act for 
Ports," in 1691. (Id. 556). But with all of these acts and in- 
ducements "the only place in Virginia, prior to 1700, to which 
the name of town could, with any degree of appropriateness 
be applied, was Jamestown, and even this never rose to a dig- 
nity superior to that of a village." 

17 The western school district may also be added to this 
and possibly some other local organisms but these being a 
later differentiation they can scarcely be called survivals. They 
are forms evolved from and often coincident with the town- 
ship or other local unit. 



THE POPULAR ASSEMBLY. 83 

advantageous. Then it becomes necessary to change the 
form of government from that of popular assembly to a 
representative type. We have no better example of this 
than the city of Boston. "Boston was a town governed 
by its folk-moot almost from its foundation until 1822, 
more than one hundred and eighty years. In 1822, 
when the inhabitants numbered forty thousand, it reluc- 
tantly became a city, giving up its town meetings be- 
cause they had grown so large as to become unmanage- 
able — the people choosing a mayor and common coun- 
cil to do the public business instead of doing it them- 
selves." 18 

In Massachusetts, till 1822, all of the cities, towns and 
villages were governed by popular assemblies, and that 
year the Legislature was authorized to charter munic- 
ipal corporations on application of a majority of the in- 
habitants of any town having a population of 12,000 or 
more. 19 Government is still carried on by popular as- 
sembly in many of the New England towns, and where 
the population is not too great this system has been 
proven by experience to be the most efficient and whole- 
some. Mr. Henry Loomis Nelson, comparing the New 
England "town" system with the "incorporated village 
system" of the Middle, Southern and Western States 
says: 

There is a vast difference, it will be seen, between the 
constitutions of States which have preserved all the es- 
sential elements of democracy and those of States from 
which the popular assembly has disappeared. There can 
be no better evidence than is afforded by a comparison of 
constitutions, that the government of small localities by 
a remote body like the State Legislature breaks down at 
the point where the town meeting system is strong. Al- 
most invariably the people who turned over the imme- 

18 Hosmer, Samuel Adams, the Man of the Town Meeting, 
p. 18. 

19 Amendment, 1822, Art. II. 



84 THE GROWTH OF DEMOCRACY. 

diate management of their local affairs to the State have 
been obliged to curb their agents, and this usually 
means a limitation upon themselves, for they do not re- 
sume the powers they have once delegated. 

While town government has been economical [in- 
corporated], village government has been extravagant 
and inefficient. It must be borne in mind that the vil- 
lage [incorporated] is compared with the [New Eng- 
land] town because the incorporated village of the rest 
of the Union is most nearly like the New England town 
in its relation to the citizen. * * * The active par- 
ticipation of the State in the intimate affairs of the lo- 
calities, which implies the destruction, or at least the 
serious limitation, of what we call "home rule" has been 
disastrous. When the legislature possessed the power to 
grant special charters, political abuses crept in, and 
some villages were favored at the expense of others. 
The village finances are managed by officers and trus- 
tees, who are usually the party leaders. The tax-payers, 
having very little control of the administration of their 
own business, naturally become careless and indifferent. 
They may grumble occasionally at a large tax rate; and 
here is a check on the village politician. The man most 
sensitive to a high tax — he who first resents what he 
looks upon as an imposition — is usually the smallest 
property-holder. The small owners are active and bel- 
ligerent. Theirs is not an ideal kind of opposition to 
bad government. Their criticism of the local budget is 
not to be compared with that which is heard at a New 
England town meeting. They do not compare the 
amount expended with the work accomplished. They 
do not see beyond the aggregates of their own tax bills; 
and so long as these are low they do not take the trouble 
to inquire very closely what their agents have done or 
intend to do with the money. 

In order to provide for important public works, local 
debts are contracted. When a New England rural town 
raises money in this manner its expenditure is jealously 
scrutinized by the town meeting, and the people are 
pretty sure to get the worth of the money which they 
borrow as well as of that which they raise by taxation. 
[Incorporated] village government being wasteful, debts 
grow rapidly, and this fact accounts for the constitu- 



THE POPULAR ASSEMBLY 85 

tional limitations upon the borrowing power. These 
limitations are directed as well against towns as counties 
and municipalities; but as the town is a comparatively 
unimportant entity in the States in whose constitutions 
the limitations are chiefly to be found, the evils that 
ought to be remedied are .incidental to county and mu- 
nicipal indebtedness. 

One of the great evils incident to small municipalities 
is the power which is in the hands of a few men, gener- 
ally politicians, to load the town with debt: * * * 
The (town) system of local government affects not only 
the amount but the character of the local indebtedness. 
The returns of the present census on this subject are not 
yet complete, but they are sufficient to indicate that in 
this respect the relations of the sections have not ma- 
terially changed in the decade. 

In 1880 the bonded debt of New England was the 
smallest of any of the four divisions — New England, 
Middle, South, and Western States. Of all its indebted- 
ness the State debts were about $2,000,000 less than 
those of the Middle and Western States and nearly $90,- 
000,000 less than those of the Southern States. Its 
county debts were less than $3,000,000 as against more 
than $30,000,000 owed by the Middle States counties, 
$24,000,000 in the South, and $64,000,000 in the West. 
By far the largest part of its debt was town and munici- 
pal. It was very nearly $126,000,000. A similar state 
of things existed in the Middle States whose town and 
municipal indebtedness amounted to more than $350,- 
000,000. The New England town debt is under the 
immediate control of the people for whose benefit it 
is contracted, and who will be obliged to pay it. They 
have determined the amount and purpose in the town 
meetings, have fixed the rate of interest, and have 
watched its expenditure item by item. 

A comparison of the subjects for which debts were 
contracted results, as might have been anticipated, from 
a knowledge of the training and political habits of the 
controlling power. The largest expenditures in New 
England and the Middle States were on account of water 
works, war expenses, and streets. * * * With a 
population of about one-third of the Middle States, New 
England borrowed more than one-half as much as the 



86 THE GROWTH OF DEMOCRACY. 

latter for water works and public buildings, about 

as much for sewers, nearly half as much for streets, more 

than one-third as much for schools and libraries. 

By far the most important item in the debt account 

of the Southern States was for refunding old debts. * 
* * * 

Another distinctive feature of the local indebtedness 
of New England is its more general distribution. A 
comparatively large part of it is under the control of the 
people who manage it in their town meetings. The 
total indebtedness of civil divisions having fewer than 
7,500 inhabitants in New England was greater than that 
of similar divisions of the Middle States. On the other 
hand, the indebtedness of towns and municipalities hav- 
ing more than 7,500 was not one-third as much. 

The conclusion to be drawn from these statistics is 
apparent. The local indebtedness of New England is 
contracted for extraordinary expenses, — for permanent 
and costly works, the benefit of which will be enjoyed 
and ought to be paid for by coming generations. The 
ordinary expenses of government — for highways, other 
than city streets, for ordinary bridges, for schools and 
libraries — are defrayed as they are incurred, from the 
annual tax levy. There is very little debt contracted 
for any of these objects, and next to nothing for the 
small matters which may be classed as miscellaneous. 
What extravagance there is in the management of pub- 
lic funds in New England is to be charged to the account 
of the cities; and yet the city governments of New 
England are greatly modified for the better by the influ- 
ence of the town meeting system which they enjoyed 
before increasing population made necessary the assump- 
tion of municipal powers and burdens. 

The cities of Worcester, Massachusetts, and Syracuse, 
New York, illustrate generally the difference between 
New England and Middle States city governments. In 
1880 the two cities were nearly equal in population. 
They are both manufacturing cities, situated in the in- 
terior and surrounded by agricultural communities. In 
1880 Syracuse had 92 miles of streets, \y% miles of which 
were paved. The annual cost of maintaining these high- 
ways was about $35,000. For the same cost Worcester 
maintained 197 miles of streets, all of which were paved. 



THE POPULAR ASSEMBLY. 8? 

The water works of Syracuse were owned by a private 
corporation and those of Worcester by the city. Syra- 
cuse had no parks, unless a small square or two may be 
thus dignified; Worcester had about 35 acres of parks. 
The drainage system of Worcester was much more elab- 
orate and perfect than that of Syracuse. While it cost 
Syracuse from $10,000 to $12,000 a year to clean 92 
miles of streets, it cost Worcester only $3,300 to clean 
197 miles of streets. The police force of Worcester was 
larger and more expensive than that of Syracuse. On 
an expenditure of $104,896 the New York city main- 
tained 18 schools, in which were taught about 7,000 
pupils; the Massachusetts maintained 36 schools, and 
instructed 9,000 children for $139,722. The fire depart- 
ment of the one consisted of four steam engines, one 
fire extinguisher, one hook and ladder truck, and five 
hose carriages; that of the other had five steam engines, 
12 hose carriages, one extinguisher, and three hook and 
ladder trucks. The annual cost of the first was $31,589; 
of the second, $38,840. A similar story might be told of 
almost any two cities taken indiscriminately from New 
England and from any other section of the country. * * 

When the nianrier of transacting business in a New 
England town and its results are compared with those 
characterizing a New York [incorporated] village, the 
superiority of the former will be found to be enormous. 

In the neighborhood of New York there is a village 
where dwell much the larger part of the 9,000 people of 
the township in which it is situated. Its streets are mud 
holes, its town hall is am ugly, ill-cared-for fire trap, its 
police and fire departments are inefficient, its expenses 
are enormous. One thing may be said in its favor — its 
school buildings are creditable. It is, moreover, a typi- 
cal suburban village. 

The wretched streets of this village — about 20 miles 
— cost, in 1889, $11,000. In 1880 the 136 miles of 
streets of Pittsfield, Massachusetts, cost $5,000. Pitts- 
field then had a population of 13,000. The splendid 
streets of Waltham, in the same State, cost $12,000. It 
is impossible to say in what New York village streets 
comparable to these are found. Waltham's population 
was 11,712. The roads of Weymouth, with a popula- 



88 THE GROWTH OF DEMOCRACY. 

tion of 10,570, cost $6,000. The roads of Woburn, with 
a population of 10,931, cost $7,000. 

Woburn is nearest like the New York village in popu- 
lation and in propinquity to a large city. Comparison of 
the remaining items of expenditure will therefore be 
between the two. The Massachusetts town owns its own 
water works; the New York village does not. It cost 
the former much less than $2,000 a year to light its 
streets; it cost the latter $11,000. The New York vil- 
lage owns two school houses, a town hall, and two en- 
gine houses; Woburn owned, ten years ago, a town 
house, an alms house, a town farm and hospital, a library 
(a gift), seven fire department houses, and 14 school 
houses. The annual cost of maintaining the schools was 
about the same in town and village — $30,000. The cost 
of the efficient town fire department was $7,500; that of 
the inefficient village department was between $3,000 and 
$4,000. The village maintained a police captain and two 
officers at a cost of $3,146; the town maintained a chief, 
three regular officers, eight special policemen for Sun- 
days and seventeen for duty at factories, etc., at a cost 

of $4,535- 

These facts declare the practical wisdom of the town 
meeting, and the crudeness and the inefficiency of the 
corporated village. In New England the body of voters 
in the town attend the stated March meetings. * * * 
The warrant for the town meeting notifies the townsmen 
of the business that will come before them. * * * 
Each voter has a printed copy of the town report. It 
contains a minutely itemized account of the expendi- 
tures of the past year. These items are criticised and 
defended by the town. The debate is general. Appro- 
priations are voted. Usually there is a subject which 
breeds excitement. It may relate to a project for a new 
school house, to the opening of a new street, to the 
building of a new sewer. The work that shall be done 
for the coming year is determined. The manner in 
which roads and bridges shall be repaired is prescribed. 
All the business transacted in villages by the board of 
trustees is done by the townsmen themselves. Everyone 
knows what is to be done, and how it is to be done. 
Every one has an opportunity to disclose what he knows 
of the misfeasance of town officers. * * * 



THE POPULAR ASSEMBLY. 89 

The results of this method in the fiscal affairs of local- 
ities and upon the character of the State governments 
has been indicated as fully as is possible within a limited 
space. 20 

Turning to the rural township we find that its history 
has been one of adaptation, growth, and extension. As 
under primitive conditions, the communal proprietary 
feature had been adopted as a means of furthering the 
general welfare, and as, under different political and 
economic conditions when the interests of the various 
members of society was most highly promoted by private 
initiative and private property, the communistic prop- 
erty feature had been abandoned, for the same reason 
local self-government by popular assembly was here re- 
tained. It was of greater advantage, and more satisfac- 
tory to all concerned. It, to the highest degree, pro- 
moted the general weal; it protected the interests of 
the members of the local political organism from neglect 
and from the insidious designs of public agents; it in- 
sured the greatest economy in public administration; 
it furnished a ready means by which the people could at 
once protect themselves against a wasting of their re- 
sources and hold their representatives in more general 
government to account. 21 

The greater economy of the township system, in those 
rural parts where the populations are compact and the 



20 Town and Village Government, Nelson, (Harper's, June, 
'91), pp. 116-119. 

21 Mr. Bryce, comparing the various forms of local govern- 
ment in the United States, says of the town meeting: "Of the 
three or four types or systems of local government which I 
have described that of the town or township with its popular 
primary assembly is admittedly the best. It is the cheapest 
and most efficient; it is the most educative to the citizens who 
bear a part in it. The town meeting has been not only the 
source but the school of democracy. Again the town meeting 
has also developed an intelligent, active minded, alert, public 
spirited people. Participation in public business has induced 
a patriotic interest." 



90 THE GROWTH OF DEMOCRACY. 

territorial subdivisions small, appears at every compari- 
son. Its constitutional merit is told by the satisfaction 
with which it has been retained in the East and the 
growing favor with which it has been received in the 
North and West. We have already indicated the con- 
stitutional advantage of the system. As pointed out by 
Mr. Nelson, those State governments which have made 
the township a part of its structure have been most satis- 
factory. The six New England States are the only ones 
of the original thirteen that have had only one consti- 
tution each since the establishment of the Federal gov- 
ernment. 22 Their constitutions were short and confined 
to structural provisions and guarantees to the general 
social state. They were "more fundamental and less 
particular" than those based on the county. Local in- 
terests have needed no other guardians than the people 
assembled in the town meetings; while in the States not 
having the town meeting with all its primitive vigor, 
it has been necessary to load their constitutions with 
restrictions on the legislature and the powers of local 
officers. So satisfactory were some of the colonial char- 
ters, where the township system was provided for, that 
they continued to serve as the fundamental law many 
years after the colonies had gained independence. For 
example, in Rhode Island the charter of 1663 remained 
in force until 1842; while the States of the Middle, West 
and South have been constantly changing their consti- 
tutions. 23 

From these New England States the township system 

-Mass., 1780; Conn., 1818; N. H., 1792; Ver., 1793; R. I., 
1842; Me., 1820. 

23 Alabama has had four, Arkansas four, Florida four, Georgia 
five, Illinois three, Indiana two, Iowa two, Kansas three, Ken- 
tucky four, Missouri three, Nebraska two, New York four, 
Ohio two, Pennsylvania four. South Carolina six, Tennessee 
three, Texas five, Virginia five. 

These are exclusive of the Constitutions under the Confed- 
eracy in the Southern States. 



THE POPULAR ASSEMBLY. 91 

has spread itself over the North and West, 24 through 
New York 25 and New Jersey, 26 Illinois, 27 Michigan, 28 
Wisconsin, 29 Minnesota, 30 Nebraska, 31 and Dakota. 32 
It has lately been adopted provisionally by California. 
In the fertile prairie States several circumstances con- 
spired to make the establishment of the political town- 
ship easy. In the first place the system of land surveys 
established by the ordinances of 1785 and 1787 was fa- 
vorable to it, as by that system the county became settled 
in small tracts. Another favorable circumstance of this 
system was that the ordinance gave to each tract of 36 
square miles the name of township. Further, in 1790, 
Governor St. Clair and the judges of the Northwest 
territory provided for a civil township in this tract for 
judicial purposes; 33 the act of the general assembly of 
the Northwest territory, 1802, made provision for a 
popular assembly by townships for purposes of elec- 
tion, 34 and the United States government had given to 
the people of each township one section of land, 35 the 
proceeds of which should be used as a permanent school 
fund, to give effect to which grant it became necessary 
to erect a body corporate and politic for school pur- 
poses. 

24 Local Govt, in Mich, and the Northwest, Bemis. Local 
Govt, in 111., Shaw. 

25 Rev. Stat. N. Y., 7 Ed. Ch. XI, Tit. II and IV; Laws, 1847, 
Ch. 197; Laws, 1872, Ch. 513; Laws, 1873, Ch. 46. 

26 See Rev. Stat. N. J. 

27 Rev. Stat. 111., 1880, Ch. 139, Sees. 1-83. 

28 Howell's Ann. Stat, of Mich., 1882, Sees. 669-717. 

29 Rev. Stat. Wis., 1878, Ch. XXXVIII. 

30 Rev. Stat. Minn., 1878, Ch. X, Sees. 1-35. 

31 Cons, of Nebraska, 1875, Art. X, Sec. 15; Comp. Stat, 1887, 
P- 32. 

32 Local Govt, in N. W., Bemis, p. 20, note 5. 

33 See Howard, p. 143. 

34 Local Govt, in Mich, and the Northwest, Bemis, J. H. 
Series, Vol. I; Local Govt, in 111., Shaw. 

35 Local Govt, in 111., Shaw, p. 10. 



92 THE GROWTH OF DEMOCRACY. 

Here, then, was a rudiment of local government. 
As New England township life grew up around the 
church, so western localism finds its nucleus in the school 
system. What more natural than that the local election 
district should soon be made to coincide with the school 
township, with a school house for a voting place, or, 
that justices of the peace, constables, road supervisors 
and overseers of the poor should have their jurisdiction 
determined by the same township lines? 36 

These rich prairies were conducive to the develop- 
ment and sustaining of a comparatively dense population, 
which, being divided territorially into congressional 
townships only six miles square, could conveniently 
assemble and transact their public business. There were 
no difficult mountain ranges to cross as in the Rocky 
Mountain States, no class lines, still more difficult to 
get over, as in the South, and the population becoming 
dense enough to make assemblies of this kind economi- 
cally possible, from the standpoint of political advantage, 
they were desirable. The general desire of each citi- 
zen to have a part in the management of his own affairs, 
the wholesome experience of those political communities 
in which the township had been inaugurated, the eco- 
nomic and political advantage of this form of organiza- 
tion, argue that this institution will ultimately prevail 
wherever the physical conditions of the country and the 
social condition of the community are such as will allow 
of it. 

In Illinois the two systems — the township organization 
on the one hand and the county organization on the 
other, the New England and the southern local polities 
— came into competition. The constitution of 1818 and 
the laws passed under it placed the entire business man- 
agement of each county in the hands of three commis- 

36 Ibid. p. 10, n. 



THE POPULAR ASSEMBLY. 9«> 

sioners. 37 The population of the State was divided sec- 
tionally — that in the southern part coming largely from 
the South and that in the northern part from the North. 
The people in the northern part of the State came with 
their own industrial system and ideas; those in the 
South came with institutions distinctly their own. A 
fierce political contest ensued which resulted in the re- 
vision of the constitution of 1847. By a compromise be- 
tween these two sections the legislature was given power 
to provide for the organization of townships under a 
general law wherever a majority of the voters in any 
county should so determine. 38 In the northern part of 
the State, townships were organized, and the system 
gradually worked south till at present over 80 of the 
102 counties have a township organization. 

In Missouri, Nebraska and several other States we 
may see the same movement in progress. The presence 
of the negro in the former and the sparsely settled con- 
dition of certain portions of the latter have been retard- 
ing elements, but, with the political and social forces at 
work in the former and the development of agricultural 
science in the latter, we may hope for a complete adop- 
tion of the township system in both. 

In the South we have both of these obstacles com- 
bined. The mountainous portions on the one hand and 
the peculiar social conditions on the other have caused 
the county court to be looked upon with greater favor. 
The natural obstacle may be overcome by industrial de- 
velopment, and the social obstacle will doubtless be 
overcome by operation of the law of advantage. Not 
that we would attempt to show that there will be any 
greater disposition in that or any other section of the 
country to disregard social distinctions, these distinc- 



37 Shaw, Local Govt. 111., p. 9. 

38 Cons., 1848, VII, 6. 



94 THE GROWTH OF DEMOCRACY. 

tions seem to be drawn more closely every year, but 
because of the economic and political advantage which 
the town meeting offers for the selection of suitable offi- 
cers, and the administration of loc.al affairs where all 
classes are given a full and free ballot. The superiority 
of numbers over merit, under the present system, — espe- 
cially where the secret ballot is enforced; the oppor- 
tunity at present given to disreputable politicians to work 
upon the ignorance, the prejudice and the cupidity of 
the negro and poor white; the ever increasing demand 
that the affairs of the county shall be managed by the 
best talent ; the greater opportunity which the town meet- 
ing will give to the community to avail itself of the 
counsel and advice of men of sterling merit and general 
respectability, recommend the township system to this 
section with great force. Government is coming to be 
regarded as a matter of business, and as a business man 
deals with those not of his own special class, as men con- 
sider it a matter of first importance in business to be 
able to meet all on a business level, so in politics, the 
most enlightened must sooner or later take the business 
view of public affairs and consider the community in 
which he lives on the same business level so far as mat- 
ters touching the public welfare are concerned. This 
being the present spirit of our institutions, the town 
meeting is a most fitting instrument by which the most 
able men of the community may be called into its ser- 
vice. For this reason the township system recommends 
itself as the future local polity of the South, as well as 
of the North and West. 

As to the Rocky Mountain division, and the arid plains 
on either side, it may be many years before this territory 
has been so far recovered to an active industrial popula- 
tion as to warrant the introduction of such a system. 

The township system has been a product of the laws 
of advantage; it has been developed and maintained on 



THE POPULAR ASSEMBLY. 95 

economic principles. With the increase of population 
and the expansion in the volume of business there comes 
a time when it is felt that the county government fails to 
reach the extremities of the body politic; when there 
seems to be need of a smaller governmental district in 
order that the opportunity may be afforded for the more 
intimate participation of every citizen in the management 
of domestic affairs. Then begins an agitation for town- 
ship organization which sometimes develops into a long 
and sharply contested struggle. No doubt inherited 
prejudices usually constitute an important element of the 
conflict, but it is fought out mainly on economic 
grounds. Will not the new government, on account of 
the multiplication and reduplication of offices, be much 
more expensive than the old? Will the new board of 
supervisors — a local legislature, sometimes composed of 
many members — be able to administer public affairs as 
promptly, intelligently and honestly as the commission- 
ers? Does not the present system favor the city at the 
expense of the country and will not the change destroy 
the official monopoly of the "court house ring?" These 
are some of the considerations which have weight at the 
polls. 

The history of Nebraska affords an excellent example 
of the economic rivalry of local organisms. When the 
territorial government was established in 1854, the 
county was chosen as the political unit; and under the 
constitution of 1867 the same system was continued. 
Not till 1875 was the first definite step taken toward the 
substitution of the township-county plan. In the con- 
stitution of that year the legislature, following the Illi- 
nois precedent, was authorized to frame a general town- 
ship act whose adoption should be left to the voters of 
the respective counties. Thereafter at each session of 
the legislature attempts were made to create a township 
law; but only in 1883 was it accomplished. And in the 



96 THE GROWTH OF DEMOCRACY. 

five years which have since elapsed but twenty-four out 
of the eighty-three organized counties of the State have 
put the law in operation. 

The result shows conclusively that the sources of 
population had little to do with the matter. The feature 
that recommends the system, which makes it of such 
great advantage in small political divisions, both urban 
and rural, is the "town meeting," the element of govern- 
ment by popular assembly. By virtue of this each citi- 
zen becomes active minded, intelligent, public spirited. 
He knows not only the general policy of his local gov- 
ernment, but also every detail of its administration. 
When the town meeting is called together printed and 
itemized accounts of expenditure are placed in his hands. 
He not only has an opportunity to criticize any element 
of expense and make his objections known and felt, but 
in passing on the budget for the next year to limit the 
expense and then, in the exercise of his right as elector, 
to choose such officers as may be relied on to push the 
policy, there determined upon, into effect. The force of 
this principle, the policy of this democratic institution, 
is felt not only in all the township itself, but also in the 
county and the State. 39 

"How powerful," wrote Thomas Jefferson, "did we 
feel the energy of this organization in the case of Em- 
bargo! I felt the foundations of government shaken 
under my feet by the New England township. There 
was not an individual in these States whose body was not 
thrown with all its momentum into action; and though 
the whole of the other States were known to be in favor 
of the measure, yet the organization of this little selfish 
minority enabled it to overrule the Union. What 
would the unwieldy county of the Middle, the South and 
the West do? Call a county meeting; and the drunken 



39 Howard, I, 150-1. 



THE POPULAR ASSEMBLY. 97 

loungers at and about the court houses would have col- 
lected, the distances being too great for the good people 
and the towns generally to attend. As Cato, thus con- 
cluded every speech with the words, delenda est Carth- 
ago, so do I every opinion with the injunction, 'divide 
the counties into wards.' " 40 



40 Jefferson to Saml. Kercheval, July 12, 1816, Writings, Vol. 
VII, p. 13. 



98 THE GROWTH OF DEMOCRACY. 



CHAPTER IV. 

GOVERNMENT BY DELEGATION, OR REPRESEN- 
TATIVE DEMOCRACY. 

Representative government is the result of the opera- 
tion of the law of "the survival of the. fittest." In the 
struggle for supremacy it became advantageous 
for the local political groups to unite. It was by broad 
co-operation that conquest was made possible. The 
vicus, the village community, the independent indus- 
trial group having been reduced to subservience, it was 
by a still broader industrial co-operation that the rule of 
conquest was broken and government based on the 
general welfare established. In the organization of the 
civil power on this broader basis of co-operation, the 
empire, the State, and in many cases the city was found 
too large and unwieldy to be governed by popular as- 
sembly, while organization according to the polity of 
conquest proved disastrous. 1 Representative govern- 
ment, therefore, became a political and economic neces- 
sity. 

Guided by the experience and precedents of the past, 
accepting the logic of their own history, the people of 
the United States and of the several federated States, 
chose the representative form of government. 2 As a 
political people, possessed of the sovereign power, they 
met and formulated a plan of permanent political or- 
ganization; by solemn political act they adopted a sys- 



1 The most notable examples of this are the Roman Em- 
pire and Spain. The Dutch Republic also suffered for the same 
reason. 

2 This refers to the more general structures, and not to the 
local units. Many of these, as already shown, are not represen- 
tative to any considerable extent. 



REPRESENTATIVE DEMOCRACY. 9$ 

tern of government whereby they ceded to the corporate 
agencies which they had created certain well defined por- 
tions of this sovereignty. Having, by general co-opera- 
tion, constructed a frame of government and provided it 
with all means of safety and of action, they retained to 
themselves the right to choose its officers and agents, to' 
change its form and structure whenever they deemed it 
expedient, and also to participate in certain acts of legis- 
lation and administration. 

The general plan adopted by the people of the United 
States, in 1787-89, for their political organization was 
tri-partite in form. It provided; first, for the organiza- 
tion of a federal government by the people of the United 
States having certain of the more general powers which 
were to be exercised over and in behalf of all of the 
people of the United States; second, for the organization 
of separate State (or commonwealth) governments, by 
the people of the several States, having certain other sov- 
ereign powers not already ceded to the federal govern- 
ment, which were to be exercised in the interest of all of 
the people of the particular State; third, for the organi- 
zation by the government of the State of political subdi- 
visions within the State, for the exercise of certain sov- 
ereign powers over the people of particular subdivisions. 

In the organization of this federal plan, the people of 
the United States especially provided that all power not 
specifically granted to the government of the United 
States should be retained by the people of the respective 
States; and in the organization of the State governments 
the people of the respective States have retained many 
powers which were not delegated to their corporate 
agents. It has been found by bitter experience that the 
representative, the public agent, when too far removed 
from his constituency, is apt to lose sight of the prime 
purpose of his appointment — the public welfare — and in- 
stead of discharging the trust by the people imposed, 



100 THE GROWTH OF DEMOCRACY. 

like the predatory leader, is prone to seek his own high- 
est welfare regardless of the injury done to the public. 
The industrial State, having extended its units, having 
given greater scope to co-operation by the formation of 
a federation, having organized a broad representative 
government, presents to the statesman the following 
problems: 

How can these representatives be made responsive 
and responsible to the people? 

How can these political organs of the State, too large 
to be economically managed by popular assembly, be 
made to perform the functions of government in the in- 
terest of the people? 

How can the people prevent predatory combinations 
getting control of the government? 

How can the people insure the protection of their own 
interests against the infidelity of its agents? 

In their attempts to make solutions of these problems, 
four constitutional devices have been employed, where- 
by the people may exercise powers directly without en- 
trusting them to agents or representatives. 

In the first place they have reserved the right to alter 
and abolish their system of government, wherever it may 
prove unsatisfactory, and to erect another in its stead. 

In the second place, they have, in a large measure, re- 
served to themselves the right to fill the offices created 
by them in the established government. 

In the third place, they have preserved to themselves 
the right of peaceable assembly and petition, and in many 
cases provided a means whereby they can initiate meas- 
ures and impress the popular will on the government. 

In the fourth place, they have provided for co-opera- 
tion in legislative and administrative acts of representa- 
tive government by means of the referendum. 2 



2 The referendum has been defined by Ellis Paxton Ober- 
holtzer as "The submission of laws, whether in the form of 



REPRESENTATIVE DEMOCRACY. 101 

The referendum is not, as has been supposed by many, 
opposed to the principles of representative government, 
on the other hand representative government is both the 
cause of and the condition precedent to its employment. 
It is a device employed, in a political organism too large 
to be governed by popular assembly, whereby the acts 
of the representatives or agents of the people may be 
submitted to them for ratification before they become 
valid or binding. 

Strictly speaking, from our point of view, the forma- 
tion and adoption of a constitution is not an act of gov- 
ernment. It is the act of the sovereign people engaged 
in the formulation of their plan of government, making 
provision for a political establishment which will exer- 
cise the sovereign functions; the appointive or elective, 
the legislative, the judicial and the executive and admin- 
istrative powers. 3 

These functions of government are only exercised 
under and according to the constitution so established. 
The appointment and election of officers, legislation, ad- 
judication, and the execution and administration of laws 
are acts of the corporate organs and governmental agen- 
cies created by the people in the formation and adoption 
of constitutions. Acts of government, in other words, 
follow the constitutional formations. The adoption of a 

statute or constitution, to the voting citizens for their ratifica- 
tion or rejection, these laws having been first passed upon by 
the people's representatives assembled in legislature or conven- 
tion." — The Referendum in America, p. g. 

3 It seems to the writer that the old classification of govern- 
ment into executive, legislative and judicial, is not complete, 
that to this must be added at least one other class of func- 
tions, that of providing for the succession; the election or ap- 
pointment of officers to fill the offices, to operate these corpo- 
rate organs provided for the exercise of the functions of gov- 
ernment. This is especially helpful in socalled popular gov- 
ernment where the people take so large a part in elections and 
where we have specialized organs of appointment, such as 
civil service commissioners, the president and senate, the board 
of appointments as in New York under the first constitution, etc. 



102 THE GROWTH OF DEMOCRACY. 

constitution could be understood as an act of govern- 
ment only in the same sense as the building of a cotton 
factory and equipping it with machinery is a part of the 
process of manufacturing muslin. We have chosen to 
regard it as a constituent act preparatory to the exercise 
of the functions of government. The constitution is the 
fundamental law, that is, it is the law that underlies and 
controls all other law. The fundamental law is the act 
of a constituent body; the statute law is the act of a 
creature of this constituent body. 

We have called attention to the plan of government 
established by the people of the United States in 1787-89 
as embodying the principles of popular co-operation in 
representative government. This may be in a degree 
misleading, as we are making an evolutionary study that 
has to do with the whole institutional life of the nation. 
At the time of our federal establishment popular co- 
operation was not as extensively employed as it was 
many years later; at that time we had just broken away 
from the forms of monarchy and absolutism; popular 
government was in its infancy and all its applications 
were involved in experiment. In the very nature of 
things it could not be otherwise. 

In the first place, those political establishments organ- 
ized immediately after the breaking down or withdrawal 
of British authority were in the nature of provisional or 
revolutional governments; they rested their sovereign 
rights largely on the exigencies of war. The conven- 
tions' or congresses which framed these governments 
were not constituent assemblies of the people or of dele- 
gates chosen for that purpose. The members were offi- 
cers of committees of safety, temporary governing bodies 
resting their authority in public opinion and necessity. 

The governments established were defacto and not de 
jure. Not legitimacy, however, but a means of exer- 
cising sovereign power, a means of united action, was 



REPRESENTATIVE DEMOCRACY. 103 

the element at that time most desirable. 4 Therefore the 
ordinary or provisional governing bodies, or "commit- 
tees of safety," were given or allowed to assume full 
power, without being encumbered by considerations of 
political theory. 

In the second place, theories of constitutional govern- 
ment were for many years in dispute. Many of the first 
constitutions were adopted by the same processes as 
ordinary legislation, and in fact the distinction between 
a constitution and an act of the legislature was not un- 
derstood. In Thomas vs. Clusley Daniel, 2 McCords, 
R. 354, the court decided that the first two constitutions 
of South Carolina were merely ordinary statutes. 5 The 
same may be said of the Articles of Confederation 6 and 
of the first constitutions of all of the colonies 7 except 
Massachusetts and possibly Delaware. 8 

4 Sovereignty in such a country as our own is regarded as 
"the power of the people in its highest dignity and greatest 
force" — the state, as "the embodiment and personification" of 
this highest power. Legitimacy, therefore, is not the test of 
sovereignty or of statehood. It is highly desirable, in fact it 
is necessary, to the protection of those interests for which 
the state is organized, that this sovereignty be exercised ac- 
cording to forms of law; and in altering the form and structure 
of government it is desirable that this be done in some pre- 
determined manner; but where there is no rule of law, or where 
the ordinary means of constitutional change is interfered with 
by force, then the rule of progress demanding that this highest 
power of the people be exercised in such manner "as to them 
shall seem most likely to effect their safety and happiness," 
supersedes the rule of the law. In case the rule of law, estab- 
lished in government, does not make provision for the orderly 
modification of institutions according to the rule of progress, 
then the sovereign power may make a rule of law that will 
provide for such modifications, or, being unable to modify the 
rule of law, in revolution to establish a new rule of law — a new 
government. 

5 Ramsay's History of the Revolution in S. C, p. 128-9; Cf. 
Jameson, Sec. 136. 

6 These articles were in the nature of treaties and therefore 
within the powers of the legislature. 

7 Within this class fall the following constitutions: N. H., 
1776; S. C, 1776 and 1778; Va., 1776; N. J., 1776; Penn., 1776; 
Md., 1776; Ga., 1776; N. C, 1776; N. Y., 1777. 

8 "Here was a convention called by the legislative assembly of 



104 THE GROWTH OF DEMOCRACY. 

In the third place, after the breaking away of the 
colonies from the ancient monarchical forms, the fiction 
of sovereignty in its relation to the politically organized 
people was yet to be evolved. The principle that gov- 
ernments derive their just powers from the consent of the 
governed; that whenever any form of government be- 
comes destructive of the public welfare "it is the right 
of the people to alter and abolish it and to institute new 
government, laying its foundations in such principles 
and organizing its powers in such form as to them shall 
seem most likely to effect their safety and happiness," 
was well understood and generally accepted. But who 
are the people, and how can they exercise this right so 
as to give it the sanction of law? These were questions 
that it took many years to solve. Were those provi- 
sional governments which had been organized prior to 
and during the inception of the war for independence the 
politically organized people for the purposes of estab- 
lishing and modifying government? Reason, expressing 
itself through the courts, answered the question in the 
negative. On board the Mayflower at the time of the 
formation of the fundamental compact of the Plymouth 
colony, and in those colonies where their first constitu- 
tions were framed by popular assembly, were found ex- 
amples of a politically organized people. These popu- 
lar bodies in their organization for the consideration and 
adoption of a plan of government stood out as historic 
examples of a politically organized people for the pur- 
pose of constitution making. Who, then, were the po- 
litically organized people under circumstances where it 
was impossible for them to assemble in one convention 
and organize for this purpose? Does the fact that they 

the existing government, by an act making careful provisions 
for a fair election, and, as may be inferred, elected for the ex- 
press and only purpose of framing a constitution. Confining 
itself, probably, to this limited function, it was strictly a con- 
stitutional convention." — Jameson, Sec. 143. 



REPRESENTATIVE DEMOCRACY. 105 

meet in different places and appoint a committee of dele- 
gates to assemble and formulate a plan for them and 
then report back this plan for adoption materially 
change the essential nature of their organization? Is 
the relation essentially different when these delegates are 
empowered to both formulate and adopt the plan? It 
was long thought that these delegates were the politi- 
cally organized people. The debates of constitutional 
conventions of the first half of the national period are 
full of expressions of this view. Mr. Livingston, in the 
New York convention, 182 1, declared, "The people are 
here themselves; they are present in their delegates," 9 
and by Mr. Peters in the Illinois convention in 1847, 
"We are the sovereignty of the State. We are what the 
people of the State would be if they were congregated 
here in one mass meeting. We are what Louis XIV. 
said he was, 'We are the state.' " 10 The same error was 
made by Hon. Wm. L. Yancey in the Alabama conven- 
tion of 1861. The question being on the submission of 
the proposed constitution, the ordinance of secession, he 
said: 

This proposition is based on the idea that there is a 
difference between the people and the delegate. It 
seems to me that this is an error. * * * The people 
are here in the persons of their deputies. Life, liberty 
and property are in our hands. Look to the ordinance 
adopting the constitution of Alabama. It states, "We, 
the people of Alabama," etc., etc. All our acts are su- 
preme without ratification, because they are the acts of 
the people acting in their sovereign capacity. 11 

But, as stated by Mr. Bergeaud: 12 



9 Proceedings and Debates of the Convention of 1821, p. 199. 

10 Illinois State Reg.-, June 10, 1847. 

11 Hist. Debates, Alabama Convention, 1861, p. 114 Cf. — Jame- 
son, Sec. 312. 

12 Adoption and Amendments of Constitution, p. 184. 



106 THE GROWTH OF DEMOCRACY. 

In the United States the constitutional convention acts 
within the limits of its mandate. The legislature is the 
permanent representative of the people. The conven- 
tion is a special committee of delegates. These dele- 
gates may have received, in general terms, the command 
to revise the constitution. In this case they are free to 
submit to the electors whatever plan they may deem fit, 
provided this plan contains nothing contrary to the fed- 
eral constitution. But they may also have been given 
the special task of revising only certain parts of the con- 
stitution. In this case they are bound absolutely by the 
act of the legislature, which has specified the points 
toward which their acting may be directed, and in con- 
sideration of which the people have conferred upon them 
their mandate. Their full power extends to this point 
and no further. If they were to go beyond it they would 
be placed in a position analogous to that of the legisla- 
tor who has enacted a law contrary to the constitution. 
The legislature has received from the people the right 
to act within the limits traced by the constitution. Let 
it once pass beyond these limits, and it ceases, in so far, 
to be a legislative power. The law thus made is without 
constitutional value, and may be attacked in the courts. 
It is true that, in the case of a convention, the power 
which may legalize the transgression is close at hand. 
If the electors, called to decide upon the fate of a con- 
stitutional amendment proposed by an assembly which 
possessed no right to formulate such an amendment, 
sanction it, it becomes a part of the constitution. But 
that does not render the act by which it has been sub- 
mitted to the people any less illegal. The legislature 
would have been justified in requiring the government, 
whose duty it is to conduct the voting, to refuse to 
take it. 

Any validity given to such a constitutional modifica- 
tion would come from the action of the people — the 
right which they have to alter and change their plan of 
government — and not from any inherent right or power 
which the delegates possessed. Using the same opinion 
as that quoted by Mr. Bergeaud: 13 

13 Wood's Appeal, 75 Penn. St. Records, p. 71. 



REPRESENTATIVE DEMOCRACY. 107 

A convention has no inherent rights; it exercises 
powers only. Delegated power defines itself. To be 
delegated it must come in some adopted manner to con- 
vey it, by some defined means. This adopted manner 
therefore becomes the measure of the power conferred. 
The right of the people is absolute, in the language of 
the Bill of Rights, to alter, reform or abolish their gov- 
ernment in such manner as they may think proper. This 
right being theirs, they may impart so much or so little 
of it as they shall deem expedient. It is only when they 
exercise this right and not before, they determine, by the 
mode they choose to adopt, the extent of the powers they 
intend to delegate. 

No illustration appears to give this greater clearness 
than the constitutional provision made for amendment, 
by legislative action entirely, without reference to the 
people. For example, the constitution of Delaware 14 
provides that "The general assembly, whenever two- 
thirds of each house shall deem is necessary, may, with 
the approbation of the governor, propose amendments to 
this constitution, and at least three, and not more than 
six months, before the next general election of represen- 
tatives, duly publish them in print for the consideration 
of the people ; and if three-fourths of each branch of the 
legislature shall, after such an election, and before an- 
other, ratify the said amendments, they shall be valid to 
all intents and purposes as a part of this constitution." 
For this purpose the members are not representatives, 
i. e., legislators, but delegates, with specifically defined 
powers, and they can bind the political State only by 
following those prescriptions specifically. A manner is 
here prescribed by the people whereby the delegates may 
amend or reform the constitution without referring the 
amendment to a vote of the people. And in case th'ey 
should pursue any other manner or attempt to do any 
other thing, then their act would be absolutely void. 

"Const. 1831 Art. IX. 



108 THE GROWTH OF DEMOCRACY. 

The politically organized people being the sovereign, 
that political organization must exercise itself in order to 
establish, alter or abolish government, or not having 
exercised itself, tacitly submits to usurpation. The peo- 
ple of the United States have come to realize this fact 
in the adoption of their constitutions. 

In the fourth place, the representatives themselves, in 
the early period, were close to the people. The dele- 
gates to the early constitutional conventions, as well as 
the representatives to legislative assemblies, came from 
the town meeting, the plantation, the local community. 
The interests of the people and of their agents were 
common, and they did not feel the necessity of imposing 
constitutional restrictions and of making constitutional 
provisions for active co-operation in acts of government. 

In considering the development of popular co-opera- 
tion in representative government, we will employ the 
classification first above indicated: taking up first, the 
evolution of popular co-operation in the formation and 
adoption of the constitution; second, the evolution of 
popular co-operation in appointment and election of 
governmental agents; third, the evolution of popular co- 
operation in government by means of peaceable assem- 
bly, petition, etc.; fourth, the evolution of popular co- 
operation in ordinary acts of legislation and administra- 
tion by means of the referendum. 



ADOPTION OF CONSTITUTIONS. 109 



CHAPTER V. 

POPULAR CO-OPERATION IN THE ADOPTION AND 

AMENDMENT OF CONSTITUTIONS. 

It is a remarkable fact of American history that nearly 
all of our fundamental political establishments have been 
made by contract or compact. Prior to the colonization 
of America the notion that government was the result of 
compact among the governed, had its foundation in 
theory only. To be sure the medieval municipalities and 
some of the minor political organisms had been erected 
on this foundation, but the contractual theory had little 
to support it. The prevailing polity, prior to the Ameri- 
can colonial period, had been that of arbitrary power — 
a polity which primarily had no regard for the consent 
of the governed. No circumstance is better evidence of 
the essentially different polity and purpose of American 
political establishments than that the government from 
the first was based on contractual device. The charter 
granted to the primitive colonial corporation, the patent 
to the proprietary lord, and the compact of the volun- 
tary association, were the primary institutional founda- 
tions here; the subsequent royal charters, articles of 
confederation and constitutions were of the same con- 
tractual nature. 

Looking to these contracts as the constitutional basis 
of powers, the growth of democracy, i. e., of the co- 
operation of the people in our government, becomes a 
subject of absorbing interest. In charter grants and 
patent rights the King was regarded as the source of all 
power, as the prototype of the State, the embodiment of 
the rights of the people as an organic whole, and the 
stock company and proprietary were looked upon as his 



110 THE GROWTH OF DEMOCRACY. 

creatures. The contract, in such cases, was between the 
King, as the representative of the rights of the people, 
and the representatives of the King. But when the 
King was absent or was opposed to the interests of the 
people, it then became necessary for the people to con- 
tract with themselves, to form a social compact, as to 
the agencies of government. The first instance of this 
kind that was felt by the institutional world was in the 
Plymouth colony at the time of the formation of the 
fundamental compact. 1 

As the first legislative bodies in several of the colo- 
nies were popular assemblies, so the first constitutional 
convention was a congregation of the people. The con- 
stituent assembly of the Plymouth colony, as well as the 
constitutional conventions of the Rhode Island and New 
Haven colonies, were of this character. 2 But the "body 
politic" in all of the colonies soon became too large and 
unwieldy, too widely distributed, to meet conveniently — 
to organize themselves politically in popular convention, 
and then and there agree upon the structure and powers 
of government. The people, therefore, in the forma- 
tion of their constitutions, from necessity resorted to the 



1 See supra, p. 43 — In this case the King and the King's corpo- 
ration were absent. — Also supra, Ch. II, p. 51. 

2 The Plymouth compact was one of the most general nature. 
It did not provide for the structure of the corporate agents of 
government. It did not provide for a grant and apportionment 
of sovereign powers. It was simply a fundamental compact 
whereby they did "by these presents" "solemnly and mutually, 
in the presence of God and one another * * * covenant and 
combine (themselves) together into a civil Body Politic, for the 
further Ordaining and Preserving and Furtherance of the Ends 
aforesaid; and by virtue hereof enact, constitute and frame, 
such just and equal Laws, Ordinances, Acts, Constitutions and 
Offices, from time to time, as shall be thought most meet and 
convenient for the general good of the Colony." They left 
both the structure of corporate agents and the powers, to sub- 
sequent acts of the "body politic" so formed. New Haven, 
however, formulated a constitution that was separate from the 
people — which determined on both the general structure and 
powers. 



ADOPTION OF CONSTITUTIONS. HI 

principle of representation in constitution making; they 
chose delegates whom they empowered to act for them. 
In some cases the powers granted by the people to these 
delegates were of such nature that their acts in conven- 
tion were made binding upon the body politic without 
further sanction; in other cases the powers of the dele- 
gates were limited to the formation of a fundamental 
charter which was to be referred to the people, or to their 
representatives, for adoption or rejection. Thus, in 
1643, the articles of union framed by the United Colonies 
of New England were referred back to the people of 
New England for approval. 3 In 1777 the Articles of 
Confederation were referred to, and later ratified by the 
several colonial legislatures; in 1787 the constitution of 
the United States was referred for ratification to con- 
stituent conventions to be held in the various States. 

The referendum was, however, little employed in the 
adoption of the early State constitutions. But, with the 
establishment of the first legitimate governments, we find 
a manifest desire on the part of the people, in those 
States where the town meeting prevailed, to participate 
directly in the formation of the constitution. The prin- 
ciple that governments derive their just powers from the 
consent of the governed was a sacred one. It having 
become an impossibility for the people as a corporate 
unit to get together, agents or representatives being 
necessary for the purpose of formulating some constitu- 
tional plan, it follows that any action on the part of the 
people compatible with the principle of representation 
must be by the referendum. So practical has the plan 
proven, and so wholesome in its effects, that from this 
humble beginning it has now become the general 
method, in fact, the only legitimate method of adopting 
constitutions in all States but three. The evolution of 



3 Bancroft, I, p. 289-94; McCracken, Swiss Solution of Ameri- 
can Problems, Copley Square Series, p. 14. 



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ADOPTION OF CONSTITUTIONS. H3 

the referendum in the adoption of constitutions is shown 
in the table opposite; those constitutions adopted with- 
out submission to popular vote appear in the table 
below the double diagonal line, while those which were 
submitted to the people are shown above it. 

In making a comparison by decades from 1770 to 
1890 it will be found that there has been a very decided 
increase in the use of the one method, and a very de- 
cided decrease in the use of the other: 



Decades 


1770 
-80 


1780 
-90 


1790 
1800 


1800 
-10 


1810 
-20 


1820 
-30 


By referendum 


2 


2 


4 





3 


4 


By Representatives 


14 


16 


5 . 


1 


4 







Decades 


1830 
-40 


1840 
-50 


1850 
-60 


i860 
-70 


1870 
-80 


1880 
-90 


By referendum 


S 


13 


14 


33* 


H 


7 


By Representatives 


3 





2 


11* 









^Including the secession constitutions and those of the recon- 
struction period rejected by Congress. 

Eliminating from the list the ordinances of secession 
and those rejected by Congress, and taking periods of 
thirty years, we have the following results: 



Periods 


1770-99 


1800-29 


1830-59 


1860-89 


By referendum 


8 


7 


32 


50 


By Representatives 


35 


5 


5 






These facts, together with the fact that of the thirty- 
five constitutions adopted during the last thirty years 
only three have been by any other method than by the 
referendum, it would appear, even without express pro- 
vision in the various constitutions, that this method of 
procedure would have become the settled law of the 
land. 



114 THE GROWTH OF DEMOCRACY. 



II. 

Having shown the evolution of popular co-operation 
in the adoption of constitutions, we now turn our atten- 
tion to the provisions made for their amendment. 

The history of the constitutional amendment* presents 
several distinct phases of development. In the early 
part of our national history the chaotic condition of gov- 
ernment and of American political ideals appear in the 
fact that nine of the early constitutions 4 made no provi- 
sion whatever for the modification of their structure in 
such matters as seemed best suited to the shifting social 
and economic conditions. 5 In eight others provision was 
made for amendment, but no prescription is found for 
submitting amendments proposed to a vote of the 
people. 6 

The New England States recognized the principle of 
change, and also the principle that government should 
be established and changes in the fundamental law made 
by co-operation of the political people. The former 
principle appealed to them as a matter of necessity, and 
their whole political life had been founded on the latter. 
Their training in industrial organization, in the town- 
ship, in the city, and the traditions that they had brought 
with them from England, established this in their minds 

4 New Jersey, 1776; New York, 1777; Ohio, 1802; Pennsyl- 
vania, 1790; South Carolina, 1776; Tennessee, 1796; Virginia, 
1776, 1830 and 1850. The same fact appears in two of the 
"carpet-bag" or reconstruction constitutions, viz., Georgia, 1865; 
Virginia, 1864. 

5 In none of the states having township systems were these 
provisions omitted. They are all either southern or middle 
states. 

6 These states were Delaware, 1792, 1831; Florida, 1838; Geor- 
gia, 1798; Maryland, 1776; Missouri, 1820; South Carolina, 1778 
and 1790. To these may be added the reconstruction constitu- 
tion of South Carolina, 1865. It may be noticed also that none 
of the states had the town meeting system. 



AMENDMENT OF CONSTITUTIONS. 115 

as a political ideal from which they could not depart. 
But their experience was limited, and precedents for 
written constitutions were few. They knew little of any 
means of reaching the people other than by local assem- 
blies or through their representatives or delegates in 
convention, or legislative assembly. As it was desired 
to consult the popular will, and at the same time to have 
some means of making modifications demanded by the 
progress of political and economic necessity, six State 
constitutions 7 made provision for what has since been 
known as a Council of Censors — a body independent of 
the government itself, having powers of supervision and 
also of recommending changes in the plan of govern- 
ment. Their chief constitutional function was that of 
calling conventions for the purpose of considering 
amendments proposed. 8 This experiment, however, 



7 Constitutions of New Hampshire, 1784, 1792; Pennsylvania, 
1776; Vermont, 1777,1786, 1793. 

8 The provision for the Council of Censors in Vermont is as 
follows: 

"In order that the freedom of this Commonwealth may be 
preserved inviolate forever, there shall be chosen by a ballot, 
by the freemen of this state, on the last Wednesday in March, 
in the year one thousand, seven hundred and eighty-five, and on 
the last Wednesday in March, in every seven years thereafter, 
thirteen persons, who shall be chosen in the same manner as 
the council is chosen — except they shall not be out of the Coun- 
cil or General Assembly — to be called a Council of Censors; who 
shall meet together on the first Wednesday of June next ensu- 
ing their election; the majority of them shall be a quorum in 
every case, except as to calling a convention, in which two- 
thirds of the whole number shall agree; and whose duty it 
shall be to inquire whether the constitution has been preserved 
inviolate in every part; and whether the legislative and execu- 
tive branches of the government have performed their duty 
as guardians of the people; or assumed to themselves, or ex- 
ercised other or greater powers than they were entitled to, 
by the constitution. They are also to enquire whether the taxes 
have been justly laid and collected in all parts of this com- 
monwealth — in what manner the public monies have been dis- 
posed of, and whether the laws have been duly executed. For 
these purposes they shall have power to send for persons, pa- 
pers and records; they shall have authority to pass public 
censures — to order impeachments, and to recommend to the 



116 THE GROWTH OF DEMOCRACY. 

proved unsatisfactory and was afterward abandoned. 
Massachusetts did not employ the device of a Council 
of Censors, but provided for amendment by convention 
the initiative to be taken by the people. Art. X, Chapter 
VI of the Constitution of 1780 is as follows: 

In order the more effectually to adhere to the princi- 
ples of the constitution and to correct those violations 
which by any means may be made therein as well as to 
form such alterations as from experience shall be found 
necessary, the general court which shall be in the year 
of our Lord one thousand seven hundred and ninety- 
five, shall issue precepts to the selectmen of the several 
towns and to the assessors of the unincorporated planta- 
tions, directing them to convene the qualified voters of 
their respective t6wns and plantations for the purpose 
of collecting their sentiments on the necessity or expedi- 
ency of revising the constitution, in order to amend- 
ments. 

And, if it shall appear by the returns made that two- 
thirds of the qualified voters throughout the State who 
shall assemble and vote in consequence of the said pre- 
cepts are in favor of such revision or amendment, the 
general court (legislature) shall issue precepts, or direct 
them to be issued from the secretary's office to the sev- 
eral towns to elect delegates to meet in convention for 
the purpose aforesaid. 



legislature the repealing of such laws as appear to them to 
have been enacted contrary to the principles of the constitu- 
tion. These powers they shall continue to have for and dur- 
ing the space of one year from the date of their election and 
no longer. The said Council of Censors shall also have power 
to call a convention to meet within two years of their sitting, 
if there appears to them an absolute necessity of amending 
any article of this constitution which may be defective — ex- 
plaining such as may be thought not clearly expressed, and 
of adding such as are necessary for the preservation of the rights 
and happiness of the people; but the articles to be amended 
and the amendments proposed, and such articles as are pro- 
posed to be added or abolished, shall be promulgated at least 
six months before the day appointed for the election of such 
convention, for the previous consideration of the people, that 
they may have an opportunity of instructing their delegates 
on the subject." 
9 Poore's Charters and Constitutions, p 1865. 



AMENDMENT OF CONSTITUTIONS. 117 

And said delegates to be chosen in the same manner 
and proportion as their representatives in the second 
branch of the legislature are by this constitution to be 
chosen. 

Her example was followed by Kentucky, 10 Ohio, 11 
Louisiana, 12 Mississippi, 13 Maryland, 14 Florida, 15 and 
Nebraska. 16 The convention, however, was found to be 
an unsatisfactory means of making slight changes in 
constitutions. It was too cumbersome, too expensive, 
and in some cases the machinery for calling the conven- 
tion was so complex as almost completely to preclude 
the making of amendments which seemed necessary, but 
which did not call for an extensive revision. The con- 
stitution of Kentucky, 1850, is a notable example of 
this kind. It provided that — 

When experience shall point out the necessity of 
amending the constitution, and when a majority of 
all the members elected to each house of the general 
assembly shall, within twenty days of any regular ses- 
sion, concur in passing a law for taking the sense of 
the good people of this commonwealth as to the neces- 
sity and expediency of calling a convention, it shall 
be the duty of the several sheriffs and other officers 
of elections, at the next general election, * * * to 
open a poll for and make return to the Secretary of 
State * * * the names of all those entitled to vote 
for representatives who have voted for calling a con- 
vention; and if thereupon it shall appear that a majority 
of all the citizens of the State entitled to vote for repre- 
sentatives have voted for calling a convention, the gen- 
eral assembly shall, at their next session, direct that a 
similar poll shall be Opened and return made for the 
next election of representatives; and if thereupon it shall 

10 Cons. 1792, 1799 and 1850. 14 Cons. 1851. 

11 Cons. 1802. is Cons. 1865. 

12 Cons. 1812. i6 Cons. 1867. 

13 Cons. 1817. 



118 THE GROWTH OF DEMOCRACY. 

appear that a majority of all the citizens of this State 
entitled to vote for representatives have voted for calling 
a convention, the general assembly shall, at the next ses- 
sion, pass a law calling a convention. 

After making these provisions for taking the sense of 
the voters at two general elections, and after requiring 
that at each election a majority of all the voters in the 
State should be in favor of a convention, then another 
election was to be had for the election of delegates before 
the convention could be assembled. The result was 
that though there was urgent reason for amending the 
constitution of 1850 and though several attempts were 
made, yet at one or the other of these preliminary elec- 
tions the number of voters would be too small to meet 
the constitutional requirement, and the amendatory or- 
gans could not be set in motion. Therefore the con- 
stitution was not amended. This method was employed 
in the Florida constitution of 1865, as may be inferred 
from all the circumstances of the convention which made 
it, for the very purpose of making amendment most diffi- 
cult, and of precluding other and more popular means of 
amendment. 

Generally speaking, however, it may be said that the 
original purpose was not to make the amendatory 
process so cumbersome. The rigidity of the device is 
accounted for on the ground that the people of the 
various States did not wish to have their constitutions 
too readily changeable; that though they wished to have 
their statute law quickly responsive to the popular will, 
the good order of the country demanded that the struc- 
ture of government and the fundamental law be not 
changed to meet the whims of political factions and lead- 
ers; that above all things they demanded stability and 
order. At the same time they wished to make all pro- 
visions for change, for adaptation to progress, that were 
wholesome. They therefore resorted to experiments. 



AMENDMENT OF CONSTITUTIONS. 119 

One of their first experiments was a constitutional con- 
vention to be called by a Council of Censors; another 
was that of confining the amendatory process to a con- 
vention of constituent delegates to be called by the 
people as set forth above. Both originated in the no- 
tion that change in government should not come 
through those in power — the existing government. Both 
of these experiments proved unsatisfactory, and were 
afterward abandoned for better devices. With all the 
imperfections of these means for reaching the end in 
view we are indebted to the New England States — the 
home of the town meeting — for the part which they took 
in distinguishing constitutional from the other forms of 
law, and for their insistence on the rights of the political 
people in the establishment of their government. 

The device which was finally evolved from this early 
experience was that wherein the legislature was em- 
ployed in the capacity of a constitutional assembly for 
the purpose of initiating an amendment, thereby doing 
away with the necessity of a separate convention. This 
device has taken several forms. In Connecticut, by the 
constitution of 1818, article XI, it was provided that 
"whenever a majority of the house of representatives 
shall deem it necessary to alter or amend the constitu- 
tion they may propose alterations or amendments; which 
proposed amendments shall be continued to the next 
general assembly," but provided that each house might 
act on its final passage. In Massachusetts (1820) an- 
other eccentricity appears in the form of a provision re- 
quiring a majority of the senate and a two-thirds vote 
of the house to formulate an amendment. It would 
seem that in Connecticut the house was preferred as the 
most suitable body for initiating an amendment, because 
it was closer to the people, while in Massachusetts a two- 
thirds vote was required of that body and only a majority 
in the senate, because the senate was the more con- 



120 THE GROWTH OF DEMOCRACY. 

servative. Omitting, however, these two "sports," we 
may classify provisions for amendment where the legis- 
lature serves in the capacity of constitutent delegates as 
follows: 

First, those providing for amendment (i) by legislative 
initiative, (2) publication, (3) a second legislative action, 
(4) a second publication, (5) a vote of the people. 

Second, those providing for amendment (1) by legis- 
lative initiative, (2) publication, (3) vote of the people, 
(4) a second legislative action. 

Third, those providing for amendment (1) by legisla- 
tive initiative, (2) publication, (3) a vote of the people. 

There may be some sameness in point of the details of 
publication and of legislation, but the essential differ- 
ence appears in this— that in the first there are two legis- 
lative acts by two separate legislatures required before 
submission to the people; in the second, one legislative 
act by one legislature before submission, and another 
by a second legislature after submission; while in the 
third there is only one legislative act required, and that 
before submission. 

Taking them up in the order above set forth we can 
observe the evolution of the rule of law in making pro- 
vision for the rule of progress. 

In the first class there are thirty-one constitutions. 17 
In these the initiative in twenty-two is by majority of 
each house. 1 * 4 While in five it is by a two-thirds vote of 

17 Arkansas, 1868, XIII; California, 1849, X, 2; Connecticut, 
1818; Florida, 1868, XVIII; Georgia, 1868, XII; Illinois, 1848: 
Indiana, 1851, XVI; Iowa, 1846, X, 1857, X; Kansas, 1855, 
XVI; Louisiana, 1845, VIII; Massachusetts. Am. 1821, IX; 
Michigan, 1835, XIII; Nebraska, 1864, XVI; New Jersey, 1844, 
IX; New York, 1821, XIII, 1846, 1894; North Carolina, 1776, 
Am. 1830; North Dakota, 1895, XV; Oregon, 1857, XVII; 
Pennsylvania. 1838: X, 1873. XVIII; Rhode Island, 1842, VII; 
Tennessee, 1834, XI, 1870; Vermont, Am. 1870; Virginia, 1870, 
XII; West Virginia, 1861, XII; Wisconsin, 1848, XII. 

18 Arkansas, 1868; California, 1849; Indiana, 1851; Iowa, 1846, 
1857; Louisiana, 1845; Michigan, 1835; Nevada, 1864; New Jer- 



AMENDMENT OF CONSTITUTIONS. 121 

all the members, 19 in two by three-fifths vote of each 
house, 20 and in Massachusetts and Connecticut as above 
stated. 

The most usual time prescribed for the first publication 
i> three months, 21 although in two six months is pre- 
scribed, 22 and in one "four times." 23 

The second legislative action prescribed in twenty of 
these State constitutions is by a majority of each house; 24 
in eleven, however, a two-thirds vote of each house was 
required. 25 

The second publication prior to submission of the 
amendment to popular vote is usually left to the pre- 
scription of the legislature, 26 although Kansas, consti- 
tution of 1855, required that publication should be made 
"for at least six months prior to the next general elec- 
tion, at which election such proposed amendment shall 
be submitted." And in Louisiana, constitution of 1845. 
three months' publication was prescribed. 

As to the provisions for the submission of the proposed 



sey, 1844; New York, 1821, 1846, 1894; North Dakota, 1895 ; 
Oregon, 1857; Pennsylvania, 1838, 1873; Rhode Island, 1842; 
Tennessee, 1824, 1870; Virginia, 1870; West Virginia, 1861; 
Wisconsin, 1848. 

19 Fla., 1868; Ga., 1868; 111., 1848; Kans., 1855; Vermont, 1890. 

20 North Carolina, 1830, 1868. 

21 Ark., 1868; Cal., 1849; Fla., 1868; la., 1846, 1857; La., 1845; 
Mich., 1835; Nev., 1864; N. J., 1844; N. Y., 1821. 1846, 1894; N. 
D., 189S: Penn., 1838, 1873; Va., 1870; W. Va., 1861; Wis., 1848. 

22 N. C, 1776, 1868. 

23 Ore., 1857. 

2 *Ark., 1868; Cal., 1849; 111., 1848; Ind.. 1851 ; la.. 1846, 1857; 
La., 1845; Nev., 1864; N. J., 1844; N. Y., 1846. 1894; N. D., 1895; 
Ore., 1857; Penn., 1838, 1873; R. I., 1842; Vt., 1870; W. Va., 
1861; Wis., 1848. 

25 Fla., 1868; Ga., 1868; Kan., 1855; Mass., Am., 1821 (ma- 
jority of senate and two-thirds of house); Mich., 1835; N. Y., 
1821; N. C, 1836, 1868; Tenn., 1834, 1870; Conn., 1818. 

26 Ark., 1868; Cal., 1849; Fla., 1868; 111., 1848; Ind., 1851; la., 
1857; Mich., 1835; Nev., 1864; N. J., 1844; N. C, 1830, 1868: 
N, Dak.. 1895; Penn., 1838, 1873; R. I., 1842; Va., 1870; Tenn., 
1834, 1870; Vt., 1870; W. Va., 1861; Wis., 1848, 



122 THE GROWTH OF DEMOCRACY. 

amendments to popular vote, in nineteen of the consti- 
tutions a majority of all voting thereon was required; 27 
in four, a majority of all voting at that election; 28 in 
three, a majority voting for representatives; 29 in one, a 
majority voting at town meetings; 30 in two an absolute 
majority of all electors, 31 and in one three-fifths of all 
voting at town meeting was made requisite. 32 

The constitutions of only three States are found in the 
second class, 33 viz.: Texas, Alabama and Delaware. 
This may be considered a little more simple method of 
making amendments. Instead of requiring the amend- 
ment, first, to be passed by the legislature; second, to be 
published and made an issue in the next legislative elec- 
tion; third, to be passed a second time by the legislature 
elected on the issue; fourth, to be republished as passed 
a second time, and, fifth, to be balloted on by the people, 
it shortens the process both in time and detail and makes 
the popular election following the first legislative action 
serve a double purpose, i. e., that of passing on the 
amendment and of electing a second house on this spe- 
cial issue. But this device was contrary to the theory of 
constitutional law. The people having expressed their 
will on the amendment as formulated by the first legis- 
lature, it was an unnecessary and unsafe provision to arm 
the legislature, an organ of government which might be 
affected by such amendment, with power to defeat the 
sovereign will. Again, this method does violence to the 
theory of our institutions by reason of the fact that it 

27 Ark., 1868; Cal., 1849; Fla., 1868; la., 1846. 1857; Mich., 
1835; Nev., 1864; N. J., 1844 (at a special election); N. Y., 1821, 
1846, 1894; N. C. 1868; N. Dak., 189S; Perm., 1838, 1873; Vt, 
1870; Va., 1870; W. Va., 1861; Wis., 1848. 

28 Ga., 1868; 111., 1848; Kan., 1855; Ore., 1857. 
2!) La., 1845; Tenn., 1834, 1870. 

30 Conn., 1818. 

31 Indiana, 1851; N. C, 1830. 

32 R. I., 1842. 

33 Ala., 1819, 1865, IX, 1867; Texas, 1845, 1865, 1868; Del., 1897. 



AMENDMENT OF CONSTITUTIONS. 123 

assumes that the legislature is the proper ratifying agent 
in making constitutional changes, and that the submis- 
sion to popular vote is merely a formal or convenient 
way of ascertaining the popular will. This assumption 
clearly appears in the constitutional provisions. The 
first constitution of the kind 34 reads as follows: 

The general assembly, whenever two-thirds of each 
house shall deem it necessary, may propose amendments 
to this constitution, which proposed amendments shall 
be duly published in print at least three months before 
the next general election of representatives, for the con- 
sideration of the people, and it shall be the duty of the 
several returning officers, at the next general election 
which shall be held for representatives, to open a poll 
for and make a return to the Secretary of State for the 
time being of the names of all those voting for repre- 
sentatives who have voted on such proposed amend- 
ments, and if thereupon it shall appear that a majority of 
all the citizens of this State voting for representatives 
have voted in favor of such proposed amendments and 
two-thirds of each house of the next general assembly 
shall, after such election, and before another, ratify the 
same amendments by yeas and nays, they shall be valid, 
to all intents and purposes, as a part of this constitution. 

The popular will having expressed itself, it was simply 
a question of time when these useless and contradictory 
after acts would be dropped and the method of amend- 
ment made to involve simply a legislative initiative, pub- 
lication and submission to the people for ratification and 
adoption. 

In the third class thirty-five constitutions are found. " 5 
It will be noticed that of these only seven allow an 

34 Ala., 1819, "mode of Amending and Revising Constitution." 
ss Ala., 1875. XVII; Ark., 1874, XIX, 22; Cal, 1880, XVIII; 
Colo., 1876, XIX; Fla., 1885, XVII; Ga., 1877; XIII; Idaho, 
1889, XX; 111., 1870, XIV; Kans., 1858, 1859; Kentucky, 1891 ; 
La., 1852, IX. 1864, XII, 1868, IX, 1879, Sec. 256; Maine, 
1819, X, 2; Md, 1864, 1867, XIV; Mich., 1856, XX; Minn., 
1857, XIV, 2, 1874, XIV; Miss., 1832, 1868, 1870; Mo., 1865, 
XII, 1875, XV; Mont., 1889, XIX; Neb., 1875, XV; N. C, 



124 THE GROWTH OF DEMOCRACY. 

amendment to be initiated by a majority vote of each 
house, 3 " while in twenty-eight a vote greater than a ma- 
jority is required; twenty providing for a two-thirds 
vote 37 and eight for a three-fifths vote of each house. 38 

The prevailing length of publication is three months, 39 
only six providing for a different time. 40 

As to the provisions for a popular vote on these 
amendments, all prescribe a majority vote; but twenty 
prescribe that this shall be a majority of electors "voting 
thereon," 41 six a majority voting "for representatives," 42 
four a majority voting "at said election," 43 three an ab- 
solute majority of electors, 44 and two simply provide for 
submission, without specifying; therefore in these last 
the majority required would depend on judicial inter- 
pretation. 45 

1876; Ohio, 1851, XVI; S. Dak., 1889; Tex., 1876, XVII; Wash., 
1889, XXIII; W. Va., 1872, XIV; Wy., 1889, XX. 

SG Mo., 1865, 1875; Ark., 1S74; La., 1864; Minn., 1857, 1874: 
S. Dak., 1889. 

■ i7 Miss., 18^2, 1868, 1890; Mont, 1889; Tex., 1876; Wash., 1889; 
W. Va., 1872; Wy., 1889; Ala., 187S; Cal., 1880; Colo., 1876; 
Ga., 1877; Idaho, 1889; 111., 1870; Kans., 1859; La., 1852, 1868, 
1879; Me., 1819; Mich., 1856. 

38 Neb., 187s; Ohio, 1851; N. C, 1876; Ga., 1885; Ky., 1891; 
Kans., 1858; Md., 1864; Md., 1867. 

39 Miss., 1890; Mont., 1889; Neb., 1870; Tex., 1876; Wash., 
1889; W. Va., 1872; Wy., 1889; Colo., 1876; Fla., 188s; 111., 1870; 
Kans., 1858, 1859; La., 1852, 1868, 1879; Md., 1864, 1867; S. 
Dak., 1889. 

40 Ohio, 1851; Ark., 1874, provide that publication shall be 
made at least six months. Mo., 1865, provides at least four 
months. Ga., 1877, provides at least two months. Idaho, 1889, 
provides at least six times. Mo., 1875, provides for publication 
in each county four weeks prior to election. La., 1864, requires 
at least thirty days. 

41 Miss., 1832, 1890; Mo., 1865; Wash., 1889; W. Va., 1872; 
Ark., 1874; Cal., 1880; Colo., 1876; Fla., 1885; Ga., 1877; Kans., 
1858, 1859; Ky., 1891; La., 1879; Me., 1819; Md., 1864; Mich., 
1856; Minn., 1857, 1874; S. Dak., 1889. 

42 Miss., 1868; Ala., 1875; 111., 1870; La., 1852, 1864, 1868. 
« Neb., 1875; Ohio, 1851; Tex., 1876; Md., 1867. 

44 Idaho, 1889; N. C, 1876; Wy., 1889. 

45 Mont., 1889; Mo., 1875. 



AMENDMENT OF CONSTITUTIONS. 125 

In this class of amendatory devices it would appear 
that the details are very much reduced and the time 
shortened at least one legislative period. While the rule, 
of progress is subserved by making amendatory provi- 
sions that will allow the governmental structure to be 
modified to suit the progress of the age, the rule of law 
and order is also preserved by placing such changes be- 
yond the action both of political parties and govern- 
mental agents. 

As shown before, the initiative in nearly all of these 
constitutions can be taken only by a two-thirds or a 
three-fifths vote of each branch of the legislature; after 
this from one to two years must elapse before it can be 
submitted to the people, thus giving time for mature de- 
liberation and the subsidence of any popular fervor that 
might have given rise to the proposed amendment. 
Change by act of the established government is pre- 
vented by requiring a vote of the people, but in most of 
those constitutions a majority of those voting is sufficient 
to ratify and adopt. It has been found by experience 
that it is much more safe to presume that those not 
voting do not oppose an amendment than to require the 
actual assent of an absolute majority of all voters, for the 
reason that the electors are not apt to give attention to 
balloting on amendments during the excitement of an 
election unless they deem them opposed to their welfare. 

Comparing these three classes chronologically, we 
find that the amendatory devices of the first class pre- 
vailed in the second quarter of the century; that the sec- 
ond class was chiefly employed in the '60s, and that the 
third class prevailed in the third and fourth quarters of 
the century. 

Arranging these provisions for constitutional amend- 
ment in their respective classes by decades, the com- 
parison is as follows: 



126 THE GROWTH OF DEMOCRACY. 



Year 


1800 
-09 


1810 
-19 


1820 
-29 


1830 
-39 


1840 
-49 


Class I 
Class II 
Class III 


— 


1 


2 

1 


4 
1 


7 

1 




Year 


1850 
-59 


i860 
-69 


• 1870 
-79 


1880 
-89 


1890 
-97 


Class I 
Class II 
Class III 


4 
6 


5 
4 
7 


3 
11 


6 


1 

1 
3 



Taking the prominent periods of their use, we find 
that all but four of the first class were adopted in the 
fifty years between 1820-69, inclusive, while all but two 
of the third class were adopted within the period from 
1850-95, inclusive. 

Comparing them from the standpoint of complexity, 
it appears that the first class — that is, the first from an 
evolutionary standpoint — is much more involved than 
the second, and that the second is more involved than 
the third;. that there has been a progression in the direc- 
tion of greater simplicity. 

The last has been found also to be the most expedi- 
tious; it is operated with greater economy both of time 
and effort. At the same time the experience of the past 
has proven that this more simple and more direct 
method is a safe device for constitutional amendment; 
that it provides a means of adapting our institutions to 
the progress of the age with greater advantage to society 
than any of the preceding devices. 

Summarizing the evolution of our institutions relative 
to the co-operation of the people in establishing their 
frame of government and in modifying its structure so 
as to adapt it to the growing needs of society, we find 
that some of our first constitutions were framed and 
adopted by popular assemblies, but that this method 
could not possibly be employed in large and widely scat- 
tered communities. That for the larger and more widely 



AMENDMENT OF CONSTITUTIONS. 127 

distributed political bodies the representative principle 
was made use of. That in the first part of our constitu- 
tional period the representative, or delegate, was en- 
trusted with this work. Gradually, however, as the rep- 
resentative and the delegate became further removed in 
their interests from the people, and as the interests of 
society grew more complex, as it became advantageous 
for the people to participate directly in the adoption of 
their fundamental law, they utilized their representatives 
as agents to formulate and report to them for adoption. 
Furthermore, it being desirable to have a rule of law to 
govern the formation of constitutions, this was estab- 
lished by them as the settled, legitimate rule to govern 
them in establishing new constitutional structures. 

As to the minor changes, those which could be made 
by altering a small part of the general structure, there 
grew up a separate amendatory device whereby these 
lesser changes could be safely and economically effected, 
and the progress of constitutional development in this 
regard was along the line of increasing the power of the 
people and of giving to co-operation greater facility and 
expedition. 

A rule of law, both safe .and elastic, has thus been 
evolved from and brought into harmony with the rule 
of progress. 



128 THE GROWTH OF DEMOCRACY. 



CHAPTER VI. 

POPULAR CO-OPERATION IN THE ELECTION OF 
OFFICERS. 

A frame of government must of necessity contain two 
kinds of provisions. It must provide corporate organs 
for the exercise of sovereign functions; it must also pro- 
vide a means whereby these corporate organs may be 
manned. A governmental structure without living 
agents having power to operate its machinery would be 
but an inane, impotent figment of the mind. 

The principle of sovereignty, in the evolution of polit- 
ical institutions, has been found to inhere in those or- 
ganisms which have been able to manifest the greatest 
material force. At the time when the productive forces 
of society were disorganized, or organized in small, iso- 
lated communities, and self-government confined to local 
groups, the independent military organization that de- 
rived its resources from predation, by virtue of its being 
able to amass the greater strength, was supreme. Hav- 
ing established its supremacy, it then became competent 
to frame a government for the exercise of these sov- 
ereign powers, and by this means to retain a monopoly 
of government over the society which it ruled. History 
for many centuries was largely a record of conflicts be- 
tween governments organized on this basis, and in the 
struggle for supremacy the necessity for resources of war 
and competence developed a wider and still wider or- 
ganization of the industrial forces, till at last these forces 
obtained the mastery. Having obtained a mastery, the 
principle of self-interest, as manifested in expressions of. 
the will of the majority, still compelled society along the 
course of established institutions. 



ELECTIONS AND APPOINTMENTS. 129 

The rights, the properties, the economic interests, the 
habits of the people are involved in their political organ- 
ization. For this reason change can take place only as 
the interests and habits of the people are modified. Po- 
litical society being dependent on the ideals of the polit- 
ical people, it must be a slow process of growth. The 
mental inertia of a nation, together with the necessity of 
orderly conduct on the part of its members in their social 
and industrial relations, require that institutional prog- 
ress be a growth rather than a creation. Popular ideals 
flow largely from experience; the organs of government 
in a free political society are modified only as by expe- 
rience they are found to conflict with the welfare of the 
ruling majority. This was the case in the evolution of 
the provisions in our government for the appointment 
and election of governmental agents. 

In our early colonial establishments the institutions 
of the old world, especially of England, were directly 
impressed upon those governments which derived their 
structure and powers from charter grants. The volun- 
tary association alone may be considered the product of 
a new environment operating on experience. Those 
colonies which derived their origin from charter grants 
were largely monarchical in their methods. Executive, 
administrative, judicial and legislative departments 1 were 
officered by men appointed by the Crown or its repre- 
sentatives. The voluntary associations were democratic. 
In these there were no institutional forces to compel, no 
interest to enforce the monarchical ideals of the past 
other than custom. In fact, the social and economic 
conditions were such as to make the democratic form the 
only one that could be adopted with advantage. Where 
the voluntary association obtained, there had been no 



- 1 The legislative functions of government were exercised in 
some of these colonies by an appointed council, and in others 
by such a council sitting with popular representatives. 



130 THE GROWTH OF DEMOCRACY. 

vested rights acquired under the fictions of absolutism; 
there was nothing to be gained by monarchical assump- 
tions; there were few class distinctions to divide the 
people. On the other hand, such assumptions at that 
time would have been suicidal, for the interests of the 
people were of necessity communal. In these colonies 
all of the principal offices were at first elective. 

But the influence of the prevailing institutions of the 
old world was forcibly felt in the new. Not only the su- 
perior authority of the Crown, but also the whole weight 
of institutional contact and social intercourse, tended to 
implant the political ideals of the past. While the influ- 
ence of the environment of the new world tended to 
make the charter governments more popular, that of the 
old world tended to make the colonies that had been es- 
tablished by voluntary associations less popular, and the 
two forms found a common level in an establishment 
wherein the general executive, the general judicial, and 
a part of the legislative officers were appointive, and a 
part of the legislative and local officers were elective. 2 
This, in general, was the status of colonial government 
till the time of the Revolutionary war. 

After the colonies had asserted their independence of 
Britain, a movement set in in the direction of making 
elective all of the more general executive, judicial and 
legislative officers. To-day, except in the Federal ju- 
diciary, this is the rule. 

In the first part of our colonial history the qualifica- 
tions prescribed for electors were, generally speaking, 



2 The plan of government settled upon in the colonies after 
the revolution of 1688, generally speaking, was that of a governor 
and council, having executive and legislative power, usually 
forming a part of the legislative, and a superior judiciary, 
appointed by the crown; while the remaining portion of the 
legislative body, and the local officers, were elected by the 
people. 



ELECTIONS AND APPOINTMENTS. 131 

those of residence, 3 age 4 and that of "freemen." 5 Sex 
was also understood as a qualification in common law. 
In fact, the idea that any other than males could vote 
seems scarcely to have been suggested, although in Vir- 
ginia we find an act providing that "no woman, sole or 
covert," shall have a voice in the choice of burgesses, 6 



3 No definite period of residence was at first required, but 
the warrants calling the election usually implied or specified 
residence as a condition precedent to the right of participation. 
Later a definite period was prescribed. In Pennsylvania, 2 
years — charter 1696; Del., 2 years — 7 Geo., II, 61a, Franklin & 
Hall, Ed. 1752, p. 118; Georgia, 6 months — act of June 9, 1761; 
N. C., 1 year — laws 1715, Ch. 10; R. I., town residence — Hall 
Code, 1767, 78; N. J., 1 year — 12 Geo. I, Ch. 40, Neville's Laws, 
p. 142; S. C, 3 mos.— act 1704, No. 227, 6 raos., act 1716, No. 365, 
1 yr., act 1721, 3 Cooper, 2; N. Y. (in New York city and Al- 
bany), 3 mos. — 11 Will., Ch. 74, Sec. 10; Virginia (for Williams- 
burg), 12 mos. In N. H. (I Geo. II, Ch. 107, Sec. 2) and in New 
York, outside of New York City and Albany (4 N. Y. Col. 
Doc. 127, and 6 N. Y. Col. Doc, 56) residence was not re- 
quired if a freeholder. Prior to the enactment of 1704 in South 
Carolina, residence was not a prerequisite for those holding 
sufficient property. 

4 Twenty-one years was the general rule. In Mass. — 4 Mass. 
Col. Ric. II, 117, 166 — and in New Hampshire — 1 N. H. Prov. 
Pap., 396 — 24 years was prescribed. In Rhode Island (1665) 
housekeepers eighteen years of age were allowed to take the 
oath of freemen — 2 R. I. Col. Rec. 112 — and Delaware retained 
the age qualification of 22 after the colonial period — Cons. 1797, 
IV, 1; Cons. 1831, I, 1. 

5 The qualification of "freemen" in New England colonies 
was very similar to that of citizen — Bishop, Hist, of Elec, p. 
47, 49, 97. There the term signified those who had been ac- 
corded the freedom of the colony. "To obtain this freedom, 
and thus become a freeman, and incidentally an elector, cer- 
tain prescribed steps had to be taken. * * * Freemen could 
originally be admitted at one of the general courts. * * * 
Freemen became such upon taking the oath and having their 
names enrolled. Ultimately freemen were allowed to be ad- 
mitted in their own towns." In some of the cities like New 
York and Albany the term signified those who had the free- 
dom of the corporation — Bishop, pp. 47, 49. Virginia allowed 
the "inhabitants" to vote for burgesses, (1619) — 1 Hening, 
no, 113. Later it was provided that burgesses should be elected 
"by the votes of all persons who, having served their tyme as 
freemen of this country." — Bishop, p. 49. In the southern states 
this was quite usually the meaning of the word "freeman." As 
to Carolina, Pennsylvania, Delaware and Maryland, see Bishop, 
49 and so. 

6 11 Will., Ill, Ch, 2; 3 Hening, 172, 



132 THE GROWTH OF DEMOCRACY. 

and in North Carolina the word man appears in one 
statute. 7 Bishop 8 is of the opinion that the qualification 
of "freemen" in the New England colonies would bar 
women. 

The qualifications of residence, age and citizenship, or 
something akin thereto, seem not to be such as flow from 
institutional contact or extraneous influence, but from 
necessity and expediency. It is expedient that those 
who manage the affairs of government shall be residents 
of the country over which the government is estab- 
lished; 9 it is necessary that those possessing the right of 
suffrage shall be of such age that they may be able to 
form a mature judgment; 10 it is also expedient that those 
who participate shall be from among those for whose 
benefit the government has been inaugurated. 11 The 
other qualifications of the early period, such as sex, re- 
ligion, morals, and those latter qualifications of property, 
taxation, legal status, race and color, seem to be largely 
attributable to the influence of the political ideals of the 
past; to the contact of institutions that had been founded 
on monarchical principles. 

Clearly the religious qualifications imposed on the 
early colonists are attributable to the political ideals of 
the country from which they came. In the colonies 
there was no state hierarchy to support, no privileged 



7 Act 1794, prescribing qualification for the town of Wilming- 
ton. 

8 Bishop, Hist, of Elec, p. 66. 

9 This became apparent from the experience of those colonies 
like the Massachusetts Bay colony, and the first Virginia colony, 
an attempt to govern which was made by home corporations 
in England. 

10 This qualification rests upon the same principle as those 
debarring insane people and imbeciles from right of suffrage. 

11 Government is primarily for the citizen, and all other than 
citizens, those who receive rights at its hands or are protected 
in their interests, receive these rights and have these inter- 
ests protected, in order that the citizens may be benefited thereby 
in their dealings and other relations at home or abroad. It 
therefore has been found best from experience to limit the acts 
of participation in government largely to citizens. 



ELECTIONS AND APPOINTMENTS. 133 

class to invoke the church in its behalf, and therefore 
these qualifications soon faded into insignificance. For 
example, in the Massachusetts Bay colony it was at first 
necessary to belong to the Puritan church; 12 in 1660 the 
qualification was broadened so as to include "members 
of some church of Christ in full communion." 13 Later 
(1662) the certificate of a minister that the applicant for 
rights of suffrage was "orthodox in religion and not vi- 
cious" was sufficient. 14 The Plymouth colony also pro- 
vided that the candidate for suffrage should be "orthodox 
in the fundamentals." 15 But with the union of the 
Plymouth and Massachusetts colonies in 1691 no rule 
is found in the charter limiting the right to church 
members. 16 

The New Haven colony, soon after their establish- 
ment, prescribed "church membership" as a qualification 
for suffrage. 17 At the time of the coalition of the colony 
with the Connecticut colony and the adoption of the con- 
stitution of 1664 these qualifications disappeared. 18 

In Rhode Island church. membership was not required, 
but "a profession of Christianity," 19 the only church qual- 
ification was that the applicant be not a Roman Cath- 
olic. 20 All religious qualifications disappeared from this 
colony in 1783. 21 



12 Laws of 1631, Ed. 1660, p. 33. 

13 Laws, Ed. 1660, p. 33; Mass. Col. Rec, pt. II, 117, 165, 167. 

14 Laws, Ed. 1814, p. 107. 

15 Book of Laws, 1671, Ch. 5, Sec. 5; Brigham, 258. 

16 Poore's Charters, etc., I, 942. 

17 1639, I, New Haven Col. Rec. 15; 1643, Id-, 112. 

18 Poore's Charters, etc., I, p. 252. 

19 2 R. I. Col. Rec, no, 113. 16 Car. II, Franklin Ed., 1730; 
1744, 4- 

20 Roman Catholics were excepted by law from those pro- 
fessing Christianity, who sought to obtain the privilege of 
suffrage. It is doubted, however, if this prohibition was con- 
tained in the law as originally passed, there being some evi- 
dence to show that it was interpolated later to please the home 
government. — Bishop, p. 63. 

21 Bishop, 63. 



134 THE GROWTH OF DEMOCRACY. 

Locke's constitution of South Carolina prescribed the 
acknowledgment and public worship of God. 22 This 
frame of government, however, was almost wholly in- 
operative, on account of its being so ill suited to the 
conditions of the new world. But owing to the political 
relations in Europe and to the religious prejudices 
against the Catholics growing out of these relations, the 
Catholics were quite generally barred from the right of 
suffrage among the colonies. 23 

Quakers having scruples against taking an oath in the 
name of God, 24 by reason of the oaths required as con- 



22 Poore's Charters, 1407. 

23 "It seems to have been the rule in most of the American 
colonies that Roman Catholics could not vote. They were 
especially disfranchised by the statutes of New York (13 Will. 
Ill, Ch. 94; Van Schaak's Laws, 40; 3 N. Y. Col. Doc, 675), 
and Maryland (3 Charles, Lord Baltimore, Ch. 1, Sec. 3, 1718; 
Bacon's Laws, 'Profest Papists'). In these two governments 
persons suspected of papist beliefs were required before being 
permitted to vote, to take the oaths of supremacy and alle- 
giance, and to sign the test and association. Papist recusants 
were disfranchised in New York (13 Will. Ill, Ch. 94), and 
Virginia ('Recusant Convicts,' 11 Wm. Ill, Ch. 2, 3 Hening, 
172, 'Recusant' 3 Geo. Ill, Ch. I, Sec. 7, 7 Hening, 519). 

"An early law of New Hampshire which was repealed im- 
mediately after it was enacted, required freemen to be protes- 
tants. (1 N. H. Prov. Papers, 396). * * * The provisions 
in regard to church membership in Massachusetts during the 
government under the charter of 1628 would doubtless have 
excluded Roman Catholics. On the other hand the religion 
of the Baltimores and the general charter of the government 
would seem to justify the belief that before the royal regime 
commenced, in 1689, papists could vote in Maryland." — Bishop, 
61 and 62. 

24 "Just before yielding to the royal commands, under pre- 
tense of permitting non-church members to become freemen, 
Massachusetts, in furtherance of her laudable desire to pre- 
serve the 'good and honest character' of her freemen, had 
passed a law which recounted the dangers she had found by 
experience to exist within her boundaries from those of her 
inhabitants who were 'enemies to all government, civil and 
ecclesiastical, who will not yield obedience to authority, but 
make it much of their religion to be in opposition thereto,' 
and who carried out their designs by electing wicked persons', 
etc. In consequence of all these evils it was enacted that 'all 
persons, Quakers or others, acting aforesaid,' shall be incapa- 



ELECTIONS AND APPOINTMENTS. I'&S 

ditions precedent, were put without the pale of the po- 
litical state and the privileges of participation in the gov- 
ernment. 

In some of the colonies Jews were also deprived of the 
ballot. 25 

All of these religious qualifications were so foreign to 
the conditions of the new world and so adverse to all 
principles of justice that they generally disappeared, and 
the new regime established during and subsequent to the 
Revolutionary war in this regard found little to modify. 26 

The moral qualifications of New England, such as 
"persons of civil conversation who acknowledge and are 
obedient to the civil magistrates," 27 "quiet and peaceable 
behavior and civil conversation," 28 "sober and peaceful 
conversation," 29 one who is not an "opposer of the good 
and wholesome laws of the colony," 30 came largely from 
the prevailing ideas as to the attitude which the subject 
under monarchical rule had been taught to assume to- 
ward his sovereign. Those of the South, where the 
township did not prevail, came largely from the social 
and legal status imposed by the mother country. For 



ble of voting 'during their obstinate persistency in such wicked 
ways and courses, and until certificate be given of their refor- 
mation.' This law, it may be remarked, was not repealed while 
the colonial charter remained in force." — Bishop, 61. 

25 Bishop, p. 64. 

26 In the constitution of South Carolina, 1778, XIII, we find, 
"The qualifications for electors shall be that every free white 
man and no other persons, who acknowledges the being of a 
God, and believes in a future state of rewards and punishments 
* * * shall be capable of electing a representative or repre- 
sentatives, for the parish or district where he actually is resi- 
dent, or in any other parish or district in the state where he 
hath a like free-hold." — Poore's Charters, etc., II, p. 1623. 

27 2 Rhode Island Col. Rec, 112. Also New Hampshire 
Laws, 1680. 

28 1 Connecticut Col. Rec, 389. Session Laws, 40, Cam- 
bridge Ed., 1673, 26. 

20 Plymouth, Gen. Laws, 1671, Ch. 5, Sec. 5. 
30 Plymouth, (1658) Brigham, 113. 



136 THE GROWTH OF DEMOCRACY. 

example, in Virginia convicts or persons convicted in 
Great Britain or Ireland and transported could not be 
enfranchised during their term of transportation. 31 

The notion that these harsh and exclusive qualifica- 
tions for suffrage came largely from foreign influence is 
not a vague theory, but has much historic data to sup- 
port it. The qualifications in the Crown colonies were 
frequently fixed by the commissions to the governors; 32 
in some cases they were prescribed in the charter; 33 the 
proprietary governments were direct attempts to repro- 
duce the feudal system and to limit popular participation 
in government. About 1660, also, a royal commission 
was appointed to investigate the governments of New 
England and to endeavor to secure uniform qualifica- 
tions for electors in this relation. This commission ex- 
ercised a direct influence and authority over the laws of 
the colonies. 34 In no particular do we find the institu- 



31 So many were the convicts sent over to these shores by 
England that in 1769 Dr. Johnson, commenting on the Ameri 
cans and their demands, refers to them as "a race of con- 
victs" that "ought to be content with anything short of hang- 
ing." (James D. Butler, British Convicts Shipped to the Amer- 
ican Colonies. Am. Hist. Rev., Vol. II, p. 12). A very large 
number of persons taken prisoner in battle or convicted of 
political offenses were transported. In the year 1651 there 
were sixteen hundred ten prisoners taken in the battle of Wor- 
cester sent to Virginia. Many of the Dutch colonists taken 
prisoners in New York and Long Island by the English were 
sold in the south as slaves. Some of this "inferior class" were 
moral or religious outcasts, and many were criminals. It has 
been estimated that no less than 50,000 people under ban of 
law were transplanted prior to the revolutionary war, most of 
whom were sent in the seventeenth century. — See Am. Hist. 
Rev., Vol. II, p. 12, et seq., also Ballah's White Servitude in 
the Colony of Virginia. The wholesale practice on the part 
of England must of necessity have affected the laws in the 
colonies, although those enactments which were the direct pro- 
duct of this practice, and which were not subsequently sup- 
planted or made necessary by present conditions, were repealed 
when the practice ceased. 

32 Bishop, 46. 

33 Charter 1691. Massachusetts, Poore's Charters, p. 949. 

34 Bishop, p. 59. 



ELECTIONS AND APPOINTMENTS. 137 

tional influences from abroad more potent than in the 
property qualifications for suffrage. Some of the col- 
onies imposed property qualifications under the direct 
guidance and recommendations of the commission above 
referred to. 35 Others had them fixed by charter. 36 In 
all, the whole influence, social and political, coming from 
the other side, was toward property qualifications, while 
the special grants of territory and authority and the 
feudal institutions implanted here tended, during the 
colonial period, to build up at home an environment 
that would demand and sustain such a rule of law. 37 

Property qualifications were more exclusive in their 
operation than any of the others imposed. The evolu- 
tion in Virginia was as follows: From 1619, the date of 
the first election for burgesses, to 1655 there were no 
property qualifications imposed; all of the "inhabitants" 
could vote. 38 In 1655 a law was passed restricting suf- 
frage to "housekeepers;" 39 but in 1656 this law was re- 
pealed because it was so great a hardship on taxpayers 
that were not housekeepers. 40 In 1670 the general vot- 
ing was restricted to "ffreeholders and housekeepers who 
were answerable to the publique for levies." 41 The tem- 



35 Rhode Island and Connecticut for example. 

36 See Constitutions of Carolina, 1669; Mass., 1691; etc. In 
the latter we find the following provision:' "Noe Freeholder 
or other person shall have a vote in the elecon of members 
to serve in any Greate or general court or Assembly to be 
held as aforesaid, who, at the time of Such elecon shall not 
have an estate of freehold in Land within Our said Province 
or Territory, to the value of Forty shillings per annum at 
the least, or other estate to the value of Forty pounds sterling." 

37 "In New England, as in Virginia, there were no property 
qualifications required at first, and the author is of the opin- 
ion that with the possible exception of Connecticut its intro- 
duction was due solely to the interference of the crown." — 
Bishop, p. 72. 

38 I Hening, 112. 

39 1 Hening, 403, 416. 

40 1 Hening, 403. 

41 2 Hening, 220. 



138 THE GROWTH OF DEMOCRACY. 

porary government of the insurgents during Bacon's re- 
bellion repealed this law and admitted all free men; 42 
but the same year (1676), the rebellion having been put 
down, the freehold qualification became permanent. 43 In 
1736 the real property requirement was increased to one 
hundred acres of uncultivated land, or twenty-five under 
cultivation. 44 Later this was reduced to fifty acres of 
uncultivated or twenty-five cultivated. 45 The property 
qualifications were not abolished till the middle of the 
nineteenth century. 

Connecticut, 1658, imposed a qualification of "thirty 
pounds proper personal estate." 46 In 1662 it was re- 
duced to twenty pounds, "besides the person in the list 
of estate," 47 and, in 1675, to ten pounds freehold "estate 
in land besides their personal estate." 48 In 1689 the re- 
quirement was a freehold estate of forty shillings in 
county taxes, 49 and the laws finally required a "freehold 
estate to the value of forty shillings per an., or forty 
pounds personal estate." 50 

Massachusetts first had property qualifications intro- 
duced through the Plymouth colony, 1665, requiring 
"twenty pounds ratable estate, at the least, in the gov- 
ernment" before the applicant was entitled to the rights 
of a freeman. 51 A provision alternative to the church 
membership qualification was made in the Massachusetts 
Bay colony which allowed those to vote who were "house- 
holders, and who had an estate, ratable to the county in 



42 2 Hening, 425. 

43 22 Charles, II. 

44 4 Hening, 475. 
4r 7 Hening, 519. 

46 1 Conn. Col. Rec, 331, 389, 439. 

47 2 Conn. Col. Rec, 253. 

45 2 Conn. Col. Rec, 253. 
40 4 Conn. Col. Rec, 11. 

50 Session Laws (Conn.), p. 40. 

51 Book of General Laws (1671), Ch. 5, Sec. 5. 



ELECTIONS AND APPOINTMENTS. 139 

a single country tax rate, after the usual manner of valu- 
ation in the place where they live, to the full value of ten 
shillings." 52 In 1691, these two colonies having been 
united under one charter, "an estate of freehold in land 
within Our said Province or Territory to the value of 
Forty shillings per annum at the least, or other estate, to 
the value of Forty Pounds Sterl.," 53 became the prop- 
erty qualification for suffrage. 

In Rhode Island, from 1665 to 1723, the property re- 
quirement was "a competent estate." 54 The law of 1723 
prescribed that a "freeman must be a freeholder of 
Lands, Tenements and Hereditaments, in such towns 
where he shall be admitted free, of the value of one hun- 
dred pounds, or to the value of 40 shillings per a." 55 Sev- 
en years afterward (1730) the requirement was increased 
to two hundred pounds, or of the value of ten pounds per 
year. 56 In 1747 it was again doubled, making it four 
hundred pounds, or twenty pounds per year. 57 This was 
the climax of exclusion from suffrage by imposition of 
property qualifications. Twenty years later, 1767, the 
prescription became fifty pounds, or an annual rental of 
forty shillings, and subsequently, 1842, the property 
qualifications were made "real estate of the value of one 
hundred and thirty-four dollars, over and above any rent 
reserved, or the interest of any encumbrance thereon." 58 
This requirement, however, was alternative to a tax of 
not less than one dollar. 59 

The property qualification imposed in New Hampshire 



52 4 Mass. Col. Rec, II, 117,. 167. 

53 Poore's Charters, etc., I, p. 935. 

54 2 Rhode Island, Col. Reg., 112. 

55 9 Geo. I, Franklin Ed., 1830, 131. 

56 3 Geo. II, Franklin Ed., 1830, 206. 

57 20 Geo. II, Franklin Ed., 1752, 13. 

58 Const. 1842, Art. II, Sec. 1, Poore's Charters, p. 1605. 

59 Const. 1842, Art. II, Sec. 2-3. 



140. THE GROWTH OF DEMOCRACY. 

by its first assembly was soon repealed. 60 In 1691, how- 
ever, the right of suffrage was restricted to freeholders 
having forty pounds a year or personal property of fifty 
pounds. 61 Later, in 1729, the requirement was made a 
fifty pound freehold estate in the town, parish or pre- 
cinct in which the voter was otherwise qualified to vote 
for representatives. 62 

In New York the qualifications for suffrage through- 
out all the colony under the first charter of liberties pre- 
scribed a freehold; 63 under the second charter a freehold 
with forty shillings per annum; 64 and, later, the holding 
of "Lands and Tenements, improved to the value of 
Forty pounds in Freehold, free from all incumbrances," 
was required. 65 

Locke's constitution of Carolina, 1669, prescribes a 
freehold qualification for electors, that none shall have 
a vote for members of Parliament "that hath less than 
fifty acres of freehold within the said precinct." 66 

The fifty-acre freehold qualification was followed in 
Maryland, 1678 ; 67 East Jersey, 1683 ; 6S Pennsylvania, 
1696; 69 New Jersey, 1702; 70 Delaware, 1734 ; 71 North 
Carolina, 1735, 7 - and Georgia, 1761. 73 This qualification 

WJ Bishop, p. 75. 

61 11 William III, 3 Prov. Papers, 216. 

02 1 Geo. Ill, Ch. 107, Fowle Ed., 1771, 166. 

03 Bishop, 75. 

64 Bishop, 75. 

65 11 William III, Ch. 74, Van Schaack's Laws, 28. 

66 Poore's Charters, etc., II, p. 1397. 

07 Act of 1678, 4 Anne, Ch. 35; 1715, Ch. 42, Baskett, Ed. 
1723. 131. 

68 Poore's Charters, etc., II, p. 1664. 

69 Poore's Charters, etc., II, p. 1531. 

70 7 Anne, Ch. 4, Sec. 1, Neville's Laws, p. 7; 8 Geo. Ill, Alli- 
son's Laws, 306. 

71 7 Geo. II, Ch. 61a, Franklin & Hall Ed., 1752, 118. 

72 8 Geo. II, Ch. 2; 17 Geo. II, Ch. 1, Sec. 3; Davis & 
Swan Ed., 1752, 177. 

73 Law of 1761, June gth. 



ELECTIONS AND APPOINTMENTS. 141 

was further restricted in Pennsylvania by the require- 
ment that the fifty acres "be cleared and seated;" 74 in 
East Jersey that ten acres be in cultivation. 75 An alter- 
native qualification 76 was provided, however, of forty 
pounds personal estate, in Maryland, 77 in New Jersey 
real and personal estate of fifty pounds value, 78 and in 
Delaware personal estate of fifty pounds. 79 

In South Carolina, 1692, an attempt was made in the 
legislature to reduce the property qualification to ten 
pounds, allowing the applicant to make oath that he was 
possessed of that amount, but the law was vetoed by the 
proprietors on account of there being no freehold quali- 
fication. 80 In 1704 an alternative personal property 
qualification of ten pounds was provided; 81 in 1716 the 
personal property qualification was raised to thirty 
pounds. 82 In 1717 the fifty-acre freehold qualification 
allowed an alternative of taxes on fifty pounds; 83 in 1721 
the tax alternative was made twenty shillings; 84 in 1745 
provision was made that the freehold must be cultivated, 
or, if not cultivated, then there must be three hundred 
acres on which taxes are paid, 85 and, in 1759, the free- 



74 Law "made at Newcastle in the year One Thousand Seven 
Hundred, entitled, An Act to ascertain the number of Mem- 
bers of the Assembly, and to regulate Elections," referred to 
in the Charter of 1701, Poore's Charters, etc., p. 1538—4 Anne, 
Ch. 129, Franklin Ed., 1742, 67. 

75 Poore's Charters, etc., II, p. 1397. 

76 Alternative qualifications were provided whereby those 
having personal property and no real-estate could vote. 

77 2 Charles Lord Baltimore, Ch. 11, Sec. 3, Bacon's Laws. 

78 7 Anne, Ch. 4, Sec. 1, Neville's Laws, p. 7, 8, Geo. Ill, 
Allison's Laws, 306. 

79 7 Geo. II, Ch. 61a, Sec. 2, Franklin & Hall Ed., 118. 

80 Bishop, p. 78, note I. 

81 Act 1704, No. 227, 2 Cooper, 249. 

82 Act 1716, No. 365, 2 Cooper, 683. 

83 Act 1717, No. 373, 3 Cooper, 2. 

84 Act 1721, No. 446, 3 Cooper, 135. 

85 Act 1745, No. 730, 3 Cooper, 657. 



142 THE GROWTH OF DEMOCRACY. 

hold qualification was made one hundred acres, or a tax 
of ten shillings. 86 

After the Declaration of Independence property quali- 
fications appear in the following constitutions: In Con- 
necticut, 1818, 87 freehold; in Louisiana, 1812, 88 land; 
Maryland, iyy6, so fifty acres of land or other property, 
with thirty pounds; Massachusetts, 1780, a "freehold 
e'state within the commonwealth of the annual income of 
three pounds, or any estate of the value of sixty pounds" 
for senatorial elector, 90 and "a freehold of the value of 
one hundred pounds, within the town he shall represent, 
or any ratable estate of the value of two hundred 
pounds" 91 for electors of representatives; Mississippi, 
territorial government, 1808, 02 "fifty acres, or who may 
hold in his own right a town lot of the value of one hun- 
dred dollars within the said territory;" New Jersey, 1776, 
"fifty pounds proclamation money, clear estate in the 
same; 93 New York, 1777, "a freehold of the value of 
twenty pounds" or a tenement "of the yearly value of 
fifty shillings." 94 The New York constitutions of 1821 95 
and 1846 96 also required a two hundred and fifty dollar 
freehold estate of free colored persons; North Carolina, 
1776, "a freehold estate within the said county of fifty 
acres of land," for senatorial electors, and an alternative 
tax or freehold qualification for representatives; 97 by 

86 Act 1759, No. 885, 33 Geo. II, 4 Cooper, 98. 

87 Conn., 1818, IV, 2. 

88 La., 1812, II, 8. 

89 Md., 1776, II. 

90 Mass., Ch. 1, Art II, Sec. 2. 

91 Mass., Ch. i, Art. IV, Sec. 3. 

92 Mississippi Ter., Gov. 1808, Sec. 1. 

93 N. J., 1776, IV. 

94 N. Y., 1777, VII. 

95 N. Y., 1721, II, 1. 
9G N. Y., 1746, II, 1. 
97 N. C, 1776, VII. 



ELECTIONS AND APPOINTMENTS. 143 

amendment, 1835, 98 the freehold qualification for sena- 
torial electors was retained; Rhode Island, 1842, 09 "real 
estate * * * of the value of one hundred thirty- 
four dollars, over and above all incumbrances, or which 
will rent for seven dollars per annum, over and above 
any rent reserved, or the interest of any incumbrance 
thereon;" 1 South Carolina, 1778, 2 "a freehold of at least 
fifty acres of land, or a town lot; 3 1790, 4 fifty acres, a 
town lot or a tax; Tennessee, 1796, 5 a freehold; Vir- 
ginia, 1776, 6 "shall remain as exercised at present" — that 
is, the same as under the last colonial acts; 1830, 7 "quali- 
fied to exercise the right of suffrage according to the 
former constitution and laws;" * ■ * * or "an estate 
or freehold in land of the value of twenty-five dollars, 
and so assessed to be, if any assessment thereof be re- 
quired by law; and every such citizen being possessed as 
tenant in common, joint tenant, or partner of an interest 
or share of land, and having an estate of freehold there- 
in" of the value of twenty-five dollars ; "and every citi- 
zen being entitled to a reversion or vested remainder in 
fee, expectant or an estate for life, or lives in land of the 
value of fifty dollars," a leasehold estate "of a term orig- 
inally not less than five years, of an annual value or rent 
of twenty dollars," or a tax qualification; Georgia, 1777, 8 
property of ten pounds value and liable to the payment 



98 Am., 1834, II, 3. 

99 Rhode Island, 1842, II, 1. 

1 This provision in the constitution further sets forth the 
alternative of a tax. 

2 South Carolina, 1778, XIII. 

3 An alternative tax qualification is also provided. 

4 South Carolina, 1790, I, 4, see also amendment, 1810. 

5 Tennessee, 1796, III, 1. 

6 Va., 1776, Poore's Charters, II, 1910. 

7 Va., 1830, III, 14. 

8 Ga., 1777, IX. 



144 THE GROWTH OF DEMOCRACY. 

of taxes; 9 Vermont, 1786, 10 "freemen, having a sufficient 
evident common interest with and attachment to the 
community;" 11 1793, 12 this provision was re-enacted. 

The property qualifications were abolished in the sev- 
eral States mentioned as follows: Connecticut, 1845; 
Maryland, 1810; Massachusetts, 1822; Mississippi, 181 7; 
New Jersey, 1844; New York, 182 1, except for persons 
of color; North Carolina, 1854; South Carolina, 1865; 
Tennessee, 1834; Virginia, 1850; Georgia, 1789; Louis- 
iana, 1845. 

The inequity of the principle of a freehold or house- 
hold qualification impressed itself upon the colonists at 
an early date. We have already noted that the Virginia 
burgesses repealed the law of 1665 limiting the franchise 
to "housekeepers, whether freeholders, leaseholders or 
other tenants," because they thought it "something hard 
and unagreeable to reason that any persons shall pay 
equall taxes, and yet have no votes in elections." 13 But 
the foreign influence was too strong to resist, and for 
something over a century property qualifications thrived. 
The increase of economic interests, other than agricul- 
tural, the growth of manufacture and commerce, finally 
demanded that the suffrage be so broadened as to in- 
clude other forms of property. The personal property 
qualification took its place alongside of the real prop- 
erty requirement. Later this proved unsatisfactory, and 
another English device was made use of by the colonists, 
viz., tax qualification. 14 The idea that there should be 



9 In this the tax qualification is in addition to the property 
qualification instead of being an alternative. 

10 Vt., 1786, I, 9. 

11 This might be construed into a property qualification, but 
the other clauses of the constitution seem to give it a differ- 
ent meaning. The writer has no knowledge as to the con- 
struction actually given. 

12 Vermont, 1793, I, 10. 

13 Hening, 403. 

14 Bishop, p. 78. 



ELECTIONS AND APPOINTMENTS. 145 

no taxation without representation had become axiom- 
atic in English political life, and was appealed to most 
strongly by Americans immediately prior and subsequent 
to the Revolutionary war. The tax qualification had 
been little employed during the colonial period, but 
gradually the property qualifications were made alter- 
native with that of taxation, or were entirely supplanted 
by it. 

In Pennsylvania by the "frame of government," made 
and granted by Wiiliam Penn, 1683, and the "Laws 
agreed upon in England," "every inhabitant, artificer or 
other resident in the said province that pays scot and lot 
to the government" 15 was deemed and accounted a free- 
man, the same as one having the real property qualifi- 
cations; in North Carolina, 1715, 16 suffrage was given to 
those who had paid taxes for the year preceding the elec- 
tion; in South Carolina, 1717, 17 persons liable to pay- 
ment of taxes were accorded the privilege, and by the 
laws of iy2i, is 1745, 19 1759 20 the tax qualification was 
continued in different forms. These cases, however, at 
this early date, may be stated as the exception rather 
than the rule. Later the alternative qualifications be- 
came the rule, and in the early part of the national 
period the tax qualification began to supplant the prop- 
erty qualification. This is seen in the constitutions of 
Delaware, 21 Georgia, 22 Massachusetts, 23 Mississippi, 24 



is Penn. 1683, II. 

10 Laws 1715, 2. North Colonial Rec, 213. 

17 Act 1717, No. 373, Sec. 9; Cooper, 2. 

18 Act 1721, No. 446, 3 Cooper, 135. 

19 Act 1745, No. 730, 3 Cooper, 657. 

20 Act 1759, No. 385, 4 Cooper, 98. 

21 Delaware, 1792, IV, 1, 1831, IV, I. 

22 Georgia, 1777, IX, 1789, IV, 1, 1798, IV, 1, 1865, V, 1, 
1868, II, 2. 

23 Mass., Am. 1822, amendment Art. III. 

24 Miss., 1817, III, 1. 



14G THE GROWTH OF DEMOCRACY. 

Missouri, 25 New York,- 6 North Carolina, 27 Ohio, 28 
Pennsylvania, 29 Virginia 30 and Connecticut. 31 

Gradually these tax qualifications are becoming elim- 
inated. 32 In some of the States, however, a new use of 
property and tax qualifications is being made. Where 
matters of financial importance are submitted to a vote 
of the people, before they are made binding, as in Tex- 
as 33 and in Colorado, 34 it is required that those who vote 
thereon shall be taxpayers, or shall have paid a property 
tax during the year previous to the election. Such pro- 
visions seem most wholesome, as a bonded debt is in the 
nature of an incumbrance on property, and therefore 
those who do not own property, and will not be called 
upon to assist in the payment of the debt, should not be 
allowed to impose it. Their powers, it would seem, 
should be limited to current taxation. 

With the breaking away from property qualifications 
and the adoption of those based on the payment of taxes, 
the theory of the right of suffrage was based on support 



20 Mo. Ter. Gov., 1812, Sec. 6. 

20 N. Y., 1777, VII; 1821, II, 1; 1846, II, I. 

27 N. C, 1776, VII, and IX. 

28 Ohio, Enabling Act, 1802, IV, 1. 

20 Penn., 1776, Plan, Sec. 6, 1790, III, 1, 1838, III, 1, 1873, 
VIII, 1. 

30 Virginia, 1839, III, 14, 1864, III, 1, Am., 1876, III, 1. 

31 Conn., 1818, IV, 2. 

32 A few of them still remain in the older states. 

33 Texas, 1876, VI, 3, has the following provision: 

"All qualified electors of the state, as herein described, who 
shall have resided for six months, immediately preceding an 
election within the limits of any city or corporate town, shall 
have the right to vote for mayor and all elective officers, but 
in all elections to determine the expenditure of money or as- 
sumption of debt, only those shall be qualified to vote who pay 
taxes on property in said city, or incorporated town: Provided, 
That no poll tax for the payment of debts thus incurred shall 
be levied upon the persons debarred from voting in relation 
thereto." 

34 Colo., 1776, XI, 8. 



ELECTIONS AND APPOINTMENTS. 147 

of government rather than the property interests to be 
protected thereby; and military service, 35 labor on 
roads, 36 etc., were in some States made equivalent to 
taxes. The tide of popular opinion, however, demand- 
ing manhood suffrage, rose to such heights that nearly 
all provisions short of this were finally swept away. The 
impetus given to democracy by the successful issue of 
the Revolutionary war was not such as to carry away 
the whole fabric of government, as in France, but during 
the period of the struggle for freedom the American 
people were being schooled in the development of in- 
stitutions and the establishment and maintenance of 
order, in America, the general welfare being foremost in 
the minds of the people as the true end of political es- 
tablishments and order necessary to this welfare, democ- 
racy assumed a conservatism unknown in other lands. 
Change came only as industrial interests demanded it. 
The justice of manhood suffrage had impressed itself on 
the popular mind many years before manhood suffrage 
was realized as a fact. A most interesting demonstration 
of this conservatism, and at the same time of the evolu- 
tionary trend of our institutions in this particular, ap- 
pears in the constitutional convention of New York, 
182 1. The constitution of 1777 had prescribed a land 
qualification for voters in all parts of the State except 
New York city and Albany. 37 There was a strong party 
in the State to uphold this on conservative grounds. The 
contest in the convention of 1821 was a spirited one; but 
finally the land qualification was abolished as to all ex- 
cept free men of color, who were required to have a free- 
hold of the value of two hundred and fifty dollars. 38 As 



as Conn., 1818, IV, 2; Fla., 1838, VI, 1; Miss., 1817, III, 1; 
N. Y., 1821, II, 1; Rhode Island, II, 2. 
» e New York, 1821, II, 1; Ohio, 1802, IV, 5. 
37 New York Const, 1777. VII. . 
M New York Const, 1821, II, 1. 



148 THE GROWTH OF DEMOCRACY. 

to all others it was decided that service to the State was 
the proper basis for participation in acts of government, 
and thereupon the following alternatives were given: 

A male citizen of the age of twenty-one years who shall 
have been an inhabitant of the State * * * and 
shall have, within the year next preceding the election, 
paid a tax to the State or county assessed upon real or 
personal property ; or shall by law be exempt from taxa- 
tion; or being armed and equipped according to law, 
shall have performed within that year military duty in 
the militia of the State ; or shall be exempt from perform- 
ing military duty in consequence of being a fireman in 
any city, town or village in the State * * * ; or as- 
sessed to labor upon the public highways and shall have 
performed the labor or paid an equivalent therefor ac- 
cording to law, shall be entitled to vote in the town or 
ward in which he actually resides. 

This was a compromise between the principle of man- 
hood suffrage and property suffrage, involving the idea 
of representation on the basis of taxation, so modified as 
to include all manner of service to the State. It was but 
a step further to manhood suffrage, yet this was not 
taken in this State for about fifty years. 

Along with property qualifications came those based 
on legal and social status. They both belonged to the 
same polity; were imported from the same source. 39 
With the breaking down of our institutional dependence 
on England, there was nothing left to support property 
qualifications for suffrage. The whole tendency of 
American political thought was in the opposite direction, 
and it only remained for the interests and industrial ac- 
tivities of society to so adjust themselves as to require a 
change in the established rule of law. The qualifica- 



39 The former came from the monarchical and feudal ideas of 
Europe. Slavery and bond service was of the same origin. 
In fact, we may say without danger of contradiction that slavery 
was foisted on America in the same spirit that the lands 
were apportioned and occupied by those receiving patents, 



ELECTIONS AND APPOINTMENTS. 149 

tions based on the legal status, however, having been 
once introduced, were on a different plane. They en- 
tered into the social fabric — became a part of our indus- 
trial system in those regions where slavery was econom- 
ically advantageous. The whole web and woof of our 
social, industrial and legal system supported them, and 
instead of disappearing with the withdrawal of those 
forces which had been instrumental in implanting them, 
they grew and assumed a more permanent part. The 
conditions of the whole country were at first favorable 
to servitude and slavery. When the country was first 
opened it was highly advantageous to the master, the 
planter, the lord, to have a servile class which he could 
command. It was a profitable way of organizing the 
industrial forces for the establishment of a society in a 
wilderness, or upon raw agricultural lands. The neces- 
sary means for a livelihood, a competence for life, having 
been secured, however, the servile bonds became onerous 
to a large part of society. In those places where com- 
merce and manufacture occupied the industrial energies 
slavery, even apprenticeship, was found to be unfavor- 
able, and disappeared with the changed condition of 
society. 

But in certain parts the economic development was 
such as to make slavery and social dependence advan- 
tageous to those in control of the industrial forces, and 
the legal and political systems, reflecting this, threw the 
institutions of the various members of the national fed- 
eration out of harmony. This conflict of interests, as- 
serting itself in armed violence, finally resulted in the 
uniform establishment of the stronger industrial polity, 
and the consequent remoulding of the suffrage qualifi- 
cations. 

Qualifications based on the legal status of servitude 
by indenture were imposed in all of the colonies; but this 
form of servitude passed away and with it the general 



150 THE GROWTH OF DEMOCRACY. 

qualifications based thereon. Those based on the legal 
status of slavery, so far as contained in express provi- 
sions, had their beginning in the early part of the 
eighteenth century, and were confined to the South. 
.There was no colonial law in the North to prevent any 
negro, if free, from voting. 40 In North Carolina, after 
1715, 41 no negro or mulatto could vote; in South Caro- 
lina, 1716, 42 suffrage was restricted to white men. 43 
Georgia also established the same restrictions in 1761, 44 
and in 1763 45 Virginia excluded the blacks. Slavery at 
all times disqualified, and during the national period the 
fact found expression in the constitutions of many of 
the States 46 where slavery was allowed. Out of the in- 
stitution of slavery came the qualifications as to color 
and race. The expression, "white male citizen," or 
words of such import, are found in the constitutions of 
twenty-three States. 47 In some, this color qualification 
was repealed before the civil war, but most of them 
awaited the action of the fourteenth amendment. 

The history of suffrage qualifications shows us that 
those of age, residence, citizenship, or some relationship 
akin thereto, have been considered conditions necessary 
to participation in acts of government at all of the times 
herein mentioned; in fact, are essential to the general 
welfare of a nation under free government, be it demo- 
cratic or representative in its form; that qualifications 



40 Bishop, 51 

41 Laws, 1715, 2 N. C. Col. Rec, 213. 

4 - Act 1716, No. 365, Sec. XX. This act was followed by 
those of 1717, No. 373; 1719, No. 394; 1721, No. 446; 1745, No. 
730, in which the same restriction was maintained. 

4:1 Negroes were sometimes allowed to vote in derogation of 
law. 

44 Law of 1761, June 9. 

45 3 Geo. Ill, Ch. I, Sec. 7, 7 Hening, 517. 
40 See note 1, p. 26, post. 

47 See note 2, p. 26, post. 



ELECTIONS AND APPOINTMENTS. 131 

based on religion, morals, property, taxation, military or 
other public service, legal status, race and color have 
grown out of special conditions foreign to our political, 
social and industrial habits; that with the removal of 
those extraneous influences which introduced them these 
qualifications, one after another, have disappeared, or 
are fast disappearing. 

The qualification of sex is also one that came in with 
our political and legal system as an importation, and, 
though still prevailing in most of our States, it remains 
simply as a matter of expediency to determine whether it 
shall be retained or abolished. In determining the 
question of expediency the people have been most con- 
servative. Agitation for woman's suffrage began early 
in the century. In the midle period it had assumed the 
proportions of an organized movement. The experi- 
ment was first tried in local matters — school elections. 
In this, as well as other political movements, the West 
has been the quickest to respond to forces directed to- 
ward institutional change; here popular thought is the 
least hampered by social prejudice; here the web of con- 
vention and custom is weakest. Western society has 
not become cast in a groove by decades, nay centuries, 
of settled social and industrial relations. Western so- 
ciety being new, being rather an aggregation of indi- 
viduals facing a new environment, having a population 
which has been drawn from every part of the country, 
in fact from every part of the world, its institutions are 
more nearly the product of its own creative forethought 
and mental adjustments. Here we find the experiment 
of woman's suffrage made in response to the agitation of 
the middle of the century. In school elections it would ap- 
pear that the question of expediency had been answered 
in the affirmative. At the present time most of the 
States of the West, the North and the East have made 
provision for the co-operation of women in school elec- 



152 THE GROWTH OF DEMOCRACY. 

tions. Several of the State constitutions have also made 
provision for the extension of the franchise by act of the 
legislature, placing the power to make the change where 
it can be most easily exercised when popular sentiment 
shall demand it. Three of the States have made provi- 
sion for woman's suffrage in all elections. 48 In munic- 
ipal and general elections, however, we are now in the 
experimental stage. If, in the States where the change 
has been made, the experiment proves beneficial the 
question of expediency will be solved for those which are 
contemplating the movement. 

That the qualifications are growing less restrictive 
and popular co-operation in government is becoming 
more widely extended will appear conclusively from the 
following classification of constitutional provisions: 

i. Those allowing FREE WHITE MALE CITI- 
ZENS (or those declaring intentions) twenty-one years 
of age, plus residence. 49 

2. Those allowing WHITE MALE CITIZENS (or 
those declaring intentions) twenty-one years of age, plus 
residence. 50 



48 Wy. Cons., 1889, VI, 1; Colo. Cons., 1876, VII, 2, L. 93, 
p. 206; Utah Cons., 1895, IV, 1. 

The provisions of the Utah and Wyoming constitutions are 
in words following: "The rights of citizens of the State of 

to vote and hold office shall not be denied or abridged 

on account of sex. Both male and female citizens of this state 
shall equally enjoy all civil, political and religious rights and 
privileges." 

49 Ark.— Prov. Gov. 1819, Sec. 16; Const. 1836, IV, 2; 1864, 
IV, 2; Colo. Ter. Gov., 1861, Sec. 5; Del., 1892, IV, 1; Kans. 
Ter., Gov. 1854; Fla., 1838, VII; Iowa, Ter. Gov., 1838, Sec. 
5; Ky., 1799, II, 8; 1850, II, 8; La., 1845, II, 10; 1852, II, 10; 
1812, II, 8; Md., 1810, Am. XIV, 1851, I, 1; Minn., Ter. Gov., 
1849, 5; Miss., Ter. Gov., 1801, Sec. 1; 1817, III, 1; 1817, Sched.; 
1832, III, 1; Mo., Ter. Gov., 1812, Sec. 6; 1820, III, 10; Nev., 
Ter. Gov., 1861, Sec. 5; N. C, Am. 1854, I, 3; S. C, 1878, XIII; 
1790, I, 4; Am., 1810; 1865, IV; Tenn., 1834, IV; Tex., 1845, 
III, 1; 1866, III, 1; Utah, Ter. Gov., 1830, V; Wis., Ter. Gov., 
1846, 5- 

50 Ala., 1819, III, 5; 1865, VIII, 1; Cal.. 1847, H, 1 5 Conn., 
1818, VI, 2, Am., 1845, VIII, 2; Fla., 1865, VI, 1; Ga., 1777, IX; 



ELECTIONS AND APPOINTMENTS. 153 

3. Those allowing MALE CITIZENS (or those de- 
claring intentions) twenty-one years of age, plus resi- 
dence. 51 

4. Those allowing a CITIZEN (or one declaring in- 
tentions) twenty-one years of age, plus residence. 52 

There are certain qualifications, however, looking to 
intelligence, purity and efficiency, such as education, 
registration, freedom from attainder, etc., that are grow- 
ing in favor, and seem most wholesome in conserving 
the highest welfare of the State. The educational foun- 
dation rests upon the same reasonable foundation as that 
of age. It is a vicious principle that would allow those 
to participate in government who either had insufficient 
knowledge of affairs to form mature judgments or were 
so illiterate as to be made the tools or dupes of those who 
would impose upon them. The necessity of an educa- 
tional qualification has been realized, and has found ex- 
pression in the constitutions of Massachusetts, 53 Con- 
necticut 54 and Louisiana, 55 while the constitutions of 



1865, V, 1; 111., 1818, Sched. 12, 1848, VI, 1; Ind., 1816, VI, 1; 
1851, II, 2; Iowa, 1846, II, 1; 1857, II, 1; Kans., 1855, II, 2; 
La., 1864, III, 14; Md., 1864, I, 1; 1867, I, 1; Mich., 1835, II, 
1; 1850; Minn., 1857, VII, 1; Mo., 1865, II, 18; Neb., 1866, 

II, 2; Nev., 1864, II, 1; N. J., 1844, II, 1; Ohio, 1802, IV, 1; 1851, 
VI; Ore., Ter. Gov., 1848, 5; 1857, II, 2; Penn, 1838, III, 1; 
Va., 1830, III, 14; 1850, III, 1; 1864, HI, 1; W. Va., 1861-3, 

III, 1; Wis., 1848, III, 1. 

si Ala., 1864, VII, 2; 1875, VIII; Ark., 1868, VIII, 2; 1874, 
III, 1; Colo., 1876, VII, 1; Fla., 1868, XV, 1; Ga., 1868, II, 
2; 111., 1870, VII, 1; Iowa, Am. 1868; Kans., 1857, VIII, 1; 1858, 
II, 1; 1859, V, 1; La., 1868, Sec. 98; Me., 1820, II, 1; Mich., 
Am., 1870; Minn., 1868, Am. VII, 1; Miss., 1868. VII, 2; 
Mo., Am., 1870, II, 1; 1875, VIII, 2; Neb., 1875, VII, 1; N. 
H., 1784, Poore's Charters, p. 1285, 1792, Sees. 13, 28, 42; N. 
J., 1875, Am. II, 1; N. Y.. Am., 1874, II, 1; N. C, 1868, VI. 1; 
1876, VI, 1; Penn., 1873, VIII, 1; R. I., 1842, II, 1; S. C, 1868, 
VIII, 1; Tex., (Coahuilla and Texas), 1827, 24 — Every citi- 
zen; 1836, VI, 11; 1868, III, 1; Tenn., i»87o, 1 (citizens); Va., 
1870, III, 1. 

52 Wyoming, Colorado, Utah. 

53 Mass., Am., 1857, Art. XX. 
5 * Conn., Am. 1855, IX. 

55 La., 1864, HI, IS- 



151 THE GROWTH OF DEMOCRACY. 

Florida, 56 Colorado 57 and Delaware 5S have given author- 
ity to the legislature to make such qualifications. The 
influx of illiterate foreign population, the concentration 
of these in certain districts, especially in cities, together 
with the want of intelligence among certain of the "poor 
whites" and negroes of the South, are conditions that 
should be met by a more liberal use of this restriction. 

Provisions for registration were very few prior to the 
civil war 59 and most of these requirements till very re- 
cently seem to be attributable to the conditions existent 
in the South after the emancipation of the slave. 60 What- 
ever this may argue as to their origin or prevalent use, 
experience has demonstrated that they have been most 
advantageous. The last decade has witnessed the adop- 
tion of such provisions in nearly all the States, for cities 
and towns. 

Disqualification on account of conviction of crime 
scarcely needs comment, its necessity and wholesome in- 
tent being so apparent. 61 The crimes commonly in- 



c6 Fla., 1868, XIV, 7— to take effect after 1880. 

57 Colo., 1876, VII, 3— to take effect after 1890. 

58 Dela., 1897, (Am.) — to take effect after 1900. 

59 Kan., 1855, II, 3; 1859, V, 4. 

60 The constitutions making provisions for registration during 
the first twenty years after the war were: Ala., 1867, VII, 3; 
1875, VII, 3; Ark., 1868, VIII, 3; Fla., 1868, 6; Iowa, 1868, II, 
6; La., 1864, III, 17; 1868, 99; Md., 1864, I, 2; 1867, I, 5; Miss., 
1868, VII, 2; Mo., 186s, II. 4; Am. 1870. II, 1; 1875. VIII, 5; 
N. C, 1868, VI, 2; 1876, VI, 2; S. C, 1865, IV; 1868, VIII, 3; 
Va., 1870, III, 4. Considering that all of these states are south- 
ern, and that the list comprises nearly all of the southern states 
there may seem some warrant for the conclusion that the slav- 
ery question and reconstruction after the war had some influ- 
ence in establishing the system. 

61 The constitutions containing such provisions are: Ala., 
1819, VI, 5; 1867, VII, 3: 1875, VIII, 3; Ark., 1868, VIII, 3; 
1874- 5, 7; Colo., 1876, VII, 10; Fla., 1865, VI, 2 and 3, 1868, 
XV, 4; Ga., 1777, XI, 1868, II, 3 and 5: Ind., 1816, VI, 4; 1851, 
II, 6, 10; 111., 1848, VI, 8; 1870, VII, 7; Kans., 1855, II, 5-10; 
1857. VIII, 8; 1858. II, 5-9; 1859, V, 5 and 6; La., 1845, II, 
12; 1852, II, 12; 1S64, III, 18; 1868, VI, 99, Am., 1870, Sec. 



ELECTIONS AND APPOINTMENTS. 155 

eluded in these provisions are bribery, forgery, perjury, 
theft and misdemeanors of graver import, besides, in 
some instances, dueling, fraudulent banking, etc. In 
fact, all those acts are included which in their nature 
would indicate such turpitude and disregard for society 
as to make the exercise of the franchise in their hands 
prejudicial to the general welfare. 

But the provisions for the suffrage have not stopped 
with a mere grant of the privilege; the right has been 
protected by various constitutional and statutory pro- 
visions, such as the constitutional provisions as to 
freedom of arrest on election days while attending, going 
to or coming from elections except for such high crimes 
as treason, felony, etc. 62 Laws against intimidation, 
providing for secret ballot and a fair and just count. In 



99; Me., 1820, II, 1; Md., 1851, I, 2-5; 1864, I, 3-8; 1867, I, 
2-7; Mass., Am. 1822; Miss., Am. 1859, i860, 1863, 1868, VII, 
2 and 3; Mo., 1865, II, 4-17; Am. 1870, II, 1; Neb., 1864, II, 
1; N. J., 1844, IL 1; N. Y., 1821, II, 2; 1846, II, 2; 
Am., 1874, II, 2; N. C, 1868, VI, 5; 1876, VI, 1-5; Ohio, 1802, 
IV, 4; Ore., 1857, II, 3-n; R- L, 1842, II, 5; S. C, Am. 1810, 
1865, IV; 1868, VIII, 1-8; Term., 1834, IV, 3; 1870, I, 5, IV, 2; 
Tex., 1870, VII, 1; Va., 1830, III, 14; 1850, III, 1; 1864, III, 
1; 1870, III, 1-3; Am. 1876, III, 2 and 3; W. Va., 1861, 3, III, 
16; Am., 1866, III, 1; 1872, IV, 1; Wis., 1848, III, 2. 

62 Constitutional provisions of this kind are found in the 
following constitutions: Ala., 1875, VIII, 4; Ark., 1874, III, 
4; Ariz., Stat. 1877, Bill of Rights, 24; Colo., 1876, VII. 5; 
Cal., 1873, II, 2; Del., 1831, IV, 2; Ga., 1877, II, 3; HI-, 1870, 
VII, 3; Ind., 1851, II, 12; Iowa, 1857, II, 2; Kans., 1859, V. 
7; Ky., 1850, II, 9; La., 1879, 189; Me., 1820, II, 2; Mich., 
VII, 3; Miss., 1869, IV, 7; Neb., 1875, VII, 5; Mo., 1875, VIII, 
4; Ore., 1857, II, 13; Ohio, 1851, V, 3; Pa., 1874, VIII, 5; 
Tenn., 1870, IV, 3; Tex., 1876, VI, 5- 

Provisions for freedom from arrest by civil process are found 
in the following constitutions: Conn., 1818, VI, 8; Minn., 1857, 
VII, 5; Nev., 1684, II, 4; Va., 1870, III, 4; W. Va., 1872, IV, 3. 

In Michigan (Const. 1850), Virginia (Const. 1870), and 
West Virginia (Const. 1872), voters are not required to attend 
court on election day as parties or witnesses; in Maine (Const. 
1820, II, 3), 111. (Const. 1870), Iowa (Const. 1857), Mich. 
(Const. 1850), Neb. (Const. 1875), Ore. (Const. 1857), Va. 
(Const. 1870), W. Va. (Const. 1872), and Cal. (Am. 1873), 
the elector is exempt from military duty on election day ex- 
cept in times of war. 



156 THE GROWTH OF DEMOCRACY. 

fact, the citizen has been accorded every protection for 
the fair and free exercise of his high prerogative that 
the ingenuity of man can devise, to the end that an elec- 
tion may be an expression of the will of the majority, 
irrespective of religion, property, legal or social status, 
"race, color or previous condition of servitude." 



POLITICAL ACTIVITIES. 137 



CHAPTER VII. 

PROVISIONS FOR IMPRESSING THE POPULAR 
WILL ON THE GOVERNMENT. 

We have so far confined our attention to one side of 
the State. Taking a broader view, we find that there is 
another quite as essential, namely, politics. 

To many the subject of politics brings with it an un- 
savory odor. By them all things political are viewed 
with suspicion, and the word itself accepted as a synonym 
of corruption. That many vicious practices have been 
indulged in and allowed we must admit; but there are 
many who are so accustomed to look only at the blem- 
ishes that appear on the surface that they lose sight of 
the essential truth contained in the subject of their dis- 
favor. Let us not fall into this error, but, taking a com- 
prehensive view, attempt to get at the true relation of 
politics to the State. 

Broadly viewed the state, the body politic, as we un- 
derstand it, has two essential elements, viz., LAW and 
POLITICS. The law embraces all those organic struc- 
tures, all those legislative enactments, established prec- 
edents and settled customs that have grown up and been 
retained by a political people for their orderly conduct 
one with another. In other words, law is the established 
order of society, is conservative, is stable, is constitu- 
tional, has its foundations in the past. It is the fixed ele- 
ment in the body politic. Politics embraces the active 
elements of the state, has to do with the popular will, 
comprehends the political mind, relates to the public 
spirit. In the past it has given birth to the established 
law; in the present it would mold and modify the legal 



158 THE GROWTH OF DEMOCRACY. 

establishments of the past to adapt them to the present 
and the future. Politics in its true sense is far from 
being opposed to good government. It involves the 
very life, all of the higher and nobler aspirations of the 
nation. The national spirit, its will, its political life, are 
all within the signification of the term. By the political 
activity of all its members a nation becomes great; by 
political inactivity it grows weak and decays. Those 
grand movements, such as the struggle for our national 
independence, the heroic activities which laid the founda- 
tions and reared the superstructures of our govern- 
mental system, the fierce but noble contest of citizens to 
maintain established institutions and order in both sec- 
tions during the recent war, as well as the various at- 
tempts to remold and recast the rule of law, to adopt new 
measures better suited to the progress of the age and 
the protection of the general welfare, are all manifesta- 
tions of our political life. 

In all government which has for its aim the general 
weal it is necessary to make provision for these activ- 
ities. 1 The frame of government must so provide for the 
political activities of a nation that the will of the people 
may be expressed in an orderly manner and, further, 
that this expression may, in some safe and orderly way, 
receive the sanction of law. It is the purpose of this 
chapter to notice some of the guaranties and devices of 
our government to this end. 

One of the first and most important privileges to be 
obtained by a political people and guaranteed to them 



1 The absence of means of expression of the popular will is 
one of the criteria of an arbitrary government. In fact it has 
been the aim of absolutism in all ages to suppress all expres- 
sions of popular will. The laws against heresy, apostacy, libel, 
slander, treasonable speech, peaceable assembly, free press, 
free speech and free thought, are devices to this end. The more 
absolute the government the more completely is expression of 
the will of the people repressed. It is only in popular govern- 
ment that we find recognized means of expression. 



POLITICAL ACTIVITIES. 159 

by their government is the right of peaceable assembly. 
It is as necessary that the public mind, that spiritual 
force that guides and moves the body politic, shall be 
brought into direct communication with all its parts in 
order that it may avail itself of the experience and know 
the needs of all members of the state as it is that the 
human brain shall have such relations with its various 
parts and hold in contemplation the experiences of all 
of the organs of the body relative to the environment in 
which it has lived. Otherwise neither could arrive at 
judgments useful to the organism which it would serve. 
True government must be the rational product of social 
experience. This experience can come from the people 
only. Those political devices erected to conserve the 
general welfare must be wrought out by the mature 
judgment of the political people. To this end popular 
assemblies are indispensable and the right of peaceable 
assembly a prerequisite of freedom. 

So far as is known to the writer, this right has never 
been questioned in this country. 2 As if absolutely to 
preclude it ever being questioned, guaranties were in- 
corporated in many of our early constitutions, 3 and have 
since come to occupy a place in nearly all. 4 



2 There have been some attempts to prevent peaceable as- 
sembly, but these attempts have not, so far as is known to 
the writer, been sustained as resting on right. 

3 Del., 1792, I, 16; Ky., 1792, XII (Poore, 655), 1799, X, 22; 
Mass.. 1780, XIX; N. H., 1784, I, 32; 1792, I, 32; N. C, 1776; 
Dec. of R., XVIII; Ohio, 1802, VIII, 19; Penn., 1776, Dec. of 
R., XVI; 1790, IX, 20; Tenn., 1796, XI, 22; Vt, 1777, I, 
18; 1786, I, 22; 1793, I, 20; Va., 1782, III, 16. 

4 U. S. Const., Am. I; Ala., 1819, I, 22; 1865, I, 26; 1867, I, 
27; 1875, I, 26; Ark., 1836, II, 20; 1864, II, 20; 1868, II, 4; 
1874, II, 4; Cal., 1849, I, 10; Colo., 1876, II, 24; Conn., 1818, 
I, 16; Del., 1831, I, 16; Fla., 1838, I, 20; 1865, I, 20; 1868, I, 
11; Ga., 1865, I, 7; 1868, I, 5; HI-, 1818, VIII, 19; 1848, XIII, 
21; 1870, II, 17; Ind., 1816, I, 19; 1851, I, 31; la., 1846, I, 20; 
1857, I, 20; Kans., 1855, I, 3; 1857, B - of R -> l8 ; l8 5 8 > I. 3; l8 59, 
B. of R., 3; Ky., 1850, XIII, 24; Me., 1820, I, 15; Mich., 1835, 
I, 20; Miss., 1817, I, 22; 1832, I, 22; 1868, I, 6; Mo., 1820, XIII, 



160 THE GROWTH OF DEMOCRACY. 

But under the practices that prevailed in Europe dur- 
ing the latter part of the eighteenth century, such a 
guaranty in itself would be of little avail. The mere 
fact of congregation, or aggregation, of people, would be 
to no purpose for political ends. Communication is 
necessary. The right to express thought and feeling in 
oral or written form is essential; therefore the further 
guaranties of free speech and a free press. To those 
who have never lived in a land where the government 
exercised censorial functions, such provisions may seem 
superfluous, as being only a formal recognition of nat- 
ural rights. But the colonists themselves had not always 
been free to speak and write what they thought; Eng- 
land, at the very time of our disaffection and for years 
preceding it, had been wrought to a fever heat by the 
persecutions of Wilkes, the prosecution of Wheble, 
Thompson, et al.; 5 and although for decades the rights 



3; 1865, I, 8; 1875, I, 29; Neb., 1866, I, 4; 1875, I, 19; Nev., 
1864, I,. 10; N. J., 1844. I, 18; N. C, 1868, I, 25; 1876, I, 25; 
Ohio, 1802, VIII, 19: 1851, I, 3; Ore., 1857, I, 27; Penn., 1838, 
IX, 20; 1873, I/20; R. I., 1842, I, 21; S. C, 1868, I, 6; Term.. 
1834. I, 23; 1870, I, 23; Tex., 1865, I., 19; 1866, I, 19; 1868, I, 
19; 1876, I, 27; W. Va., 1872, III, 16; Wis., 1848, I, 4. 

5 Under George III, the abuses of government became such 
as to stir up the press to opposition. A freedom of press was 
indulged in that was theretofore unknown. Says May (Const. 
Hist., of Eng., Vol. II, p. 247, Ed. London, 1889), comment- 
ing on the situation, "Lord Bute was the first to illustrate its 
power. Overwhelmed by a storm of obloquy and ridicule, 
he bowed down before it and fled. He did not attempt to stem 
it by the terrors of the law. Vainly did his hired writers en- 
deavor to shelter him; vainly did the king uphold his favorite. 
The unpopular minister was swept away; but the storm con- 
tinued. Foremost among his assailants had been the 'North 
Briton,' conducted by Wilkes, who was not disposed to spare 
the new minister, Mr. Grenville, or the court. 

"On the 23d of April, 1763, appeared the memorable number 
45 of the 'North Briton,' commenting on the king's speech 
at the prorogation, and upon the unpopular peace recently 
concluded. It was at once stigmatized as an audacious libel, 
and a studied insult to the king himself; * * * But, how- 
ever bitter and offensive, it unquestionably assailed the minis- 
ter rather than the king. * * * A verdict was obtained 



POLITICAL ACTIVITIES. 161 

of free speech and free press had been accorded in 
America, yet the possibility of a government assuming 
to restrain the freedom of its people in this respect de- 
manded that such limitations be imposed on those in 
power as to make restraint of this kind usurpation. Thus 
the first State constitution of Pennsylvania, 1776, pro- 
vided that 6 "The people have a right to freedom of 
speech and of writing and publishing their sentiments." 
The Constitution of Virginia, adopted the same year, af- 
firmed that "the freedom of the press is one of the great 
bulwarks of liberty, and can never be restrained but by 
despotic government." 7 The provision of the Pennsyl- 
vania constitution above quoted was incorporated in the 
early constitutions of Vermont — 1777 8 and 1786 ; 9 and 
the people of Massachusetts, 1780, inserted among their 
constitutional guaranties "The liberty of the press is es- 
sential to the security of freedom in a State; it ought 
not, therefore, to be restrained in the commonwealth." 10 
This security was also adopted by New Hampshire, 
1784. 11 



against Wilkes for printing and publishing a seditious and scan- 
dalous libel. At the same time the jury found his 'Essay on 
Woman' to be an 'obscene and impious libel.' But the other 
measures taken to crush Wilkes were so repugnant to justice 
and decency that these verdicts were resented by the people." 

These were but the first of a series of prosecutions insti- 
tuted against the persistent Wilkes. Williams, one of his print- 
ers of "No. 45," was also sentenced to the pillory; this was 
the occasion for another popular demonstration, which resulted 
in a popular subscription of $1,000 in his behalf. R. Thomp- 
son, of "The Gazetteer, and New Daily Advertiser," and R. 
Wheble, of the "Middlesex Journal," were prosecuted, 1771, 
for printing debates of Parliament. The printers of six other 
newspapers fell into like disfavor, and official persecutions of 
a repressive character became so common as to work up the 
people almost to a point of insurrection. 

Const. 1776, Dec. of Rights, XII. 

7 Const. 1776, Bill of Rights, 12. 

8 Const. 1777, II, 32. 

9 Const. 1786, I, 15. 

10 Mass. Const., 1780, I, 16. 

11 N. H. Const., 1784, I, 22. 



162 THE GROWTH OF DEMOCRACY 

In several of the new State formations during the 
revolutionary period, guaranties against their own gov- 
ernment was scarcely thought of. Some are entirely 
devoid of a bill of rights, and had they remained inde- 
pendent it is probable that such provisions would at 
first have been less frequently employed. 12 The organi- 
zation of a federal government, however, revived the fear 
of governmental encroachments that had darkened the 
history of England and other European nations. The 
States adopting the federal constitution demanded addi- 
tional guaranties, 13 and first among these is found the 
guaranty that "Congress shall make no law * * * 
abridging the freedom of speech or of the press, or of 
the right of the people peaceably to assemble." 14 

The federal government, having been restrained, it 
only remained for the people of the several States in 
framing their various constitutions, to impose such limi- 
tations there as they thought necessary. In Pennsylva- 
nia, 1790, the limitations relative to free speech and free 
press took the following form: "That the printing 
presses shall be free to every person who undertakes to 
examine the proceedings of the legislature or any branch 
of government, and no law shall ever be made to restrain 
the right thereof. 15 The free communication of thoughts 



12 The constitution of the United States, as it left the con- 
stitutional convention, contained very few of the guarantees 
commonly found in a bill of rights. The necessity for such 
provisions seems to have been little felt by the delegates. 

13 In the contest between the parties favoring and opposing 
the adoption of the federal constitution, the lack of guarantees 
for the freedom of the citizen against repressive acts on the 
part of the general government appealed to the people with 
such force that it was only after an understanding was had 
that such guaranties would be adopted as amendments that 
the federal scheme finally became operative 

14 Const, of the U. S., Am. 1. 

15 This may be directly attributable to the agitation concern- 
ing Wilkes, Wheble, Thompson, et al. No one was more thor- 
oughly impressed with the necessity of such a guaranty than 
Franklin. 



POLITICAL ACTIVITIES. 163 

and opinions is one of the invaluable rights of man, and 
every citizen may freely speak, write and print on any 
subject, being responsible for the abuse of that liberty." 16 
In Kentucky 17 (1792, 1799 and 1850), Delaware 18 (1792 
and 1831), Ohio 19 (1802), Indiana 20 (1816) and Illinois 21 
(1818 and 1848) these guaranties took the same form. 
In others the special privilege granted to "persons who 
undertake to examine the proceedings of the legislature 
or any branch of government," was eliminated, and only 
the more general guaranty expressed, that "every citizen 
may freely speak, write or publish his sentiments on all 
subjects, being responsible for the abuse of that liberty. 22 
Or, that "the free communication of thoughts and opin- 
ions is one of the invaluable rights of man; and every 
citizen may freely speak, write or print on any subject, 
being responsible for the abuse of that liberty. 23 In 
nearly all some form of limitation is at present found. 
These guaranties, however broad and sweeping they 

16 Penn. Const. 1790, IX, 7. 

17 Ky. Consts. 1792, XII; 1799, X, 7; 1750, XIII, 9. 
1S Del. Consts. 1792, I, 5; 1831, I, 5. 

19 Ohio, Const, 1802, VIII, 6. 

20 Ind. Const, 1816, I, 9. 

21 111., Consts., 1818, VIII, 22; 1848, XIII, 23. 

22 Ala., 1819, I, 9; 1865, I, 5; 1867, I, 6; 1875, I, 5; Cal., 
1849, I, 9; Colo., 1876, II, 10; Conn., 1818, I, 5; Fla., 1838, I, 5; 
1865, I, 5; 1868, I, 10; Ga., 1865, I, 6; 1868, I, 9; 111., 1870, II. 
4; Ind., 1851, I, 9; Kans., 1855, I, 11; 1857, B. of R., 7; 1858, 
I, 11; 1859, B. of R., 11; la., 1846, I, 7; 1857, I, 7; La., 1852, 
106; 1845, no; 1864, in; 1868, I, 4; Me., 1820, I, 4; Md., 1864, 
B. of R., 40; 1867, B. of R., 40; Mich., 1835, I, 7; Minn., 1857, 
I, 3; Miss., 1817, I, 6; 1832, I, 6; 1868, I, 4; Mo., 1875, II, 14; 
Neb., 1866, I, 3; 1875, I, 5; Nev., 1864, I, 9; N. J., 1844, I, 5; 
N. Y., 1821, VII, 8; 1846, I, 8; Ohio, 1851, I, 11; Ore., 1857. 
I, 8; Penn., 1776, B. of R., XII; S. C, 1868, I, 7; Tex., 1845, 
I, 5; 1866, I, 5; 1868, I, 5; 1876, I, 8; Vt, 1777, L 14; 1786, I, 
15; 1793, L 13; Va., 1870, I, 14; Wis., 1848, I, 3. 

2 3 Ark., 1836, II, 7; 1868, I, 2; 1874. II, 6; 111., 1818, VIII, 
22: 1848, XII, 23; Ind., 1816, I, 9; Ky., 1892, XII; 1799, X, 
7: 1850, XIII, 9; La., 1812, VI, 21; Mo., 1820, XIII, 16; 1865, 
I, 27; Penn., 1790. IX, 7; 1838, IX, 7; 1873, L 7; Tenn., 1796, 
XI; 1817, I, 19; 1834, I, 19. 



164 THE GROWTH OF DEMOCRACY. 

may seem, did not give the desired protection. In most 
of them, it may be noticed, such a clause as "being re- 
sponsible for the abuse of that liberty" may be found. 
Under the common and statute law of England this re- 
sponsibility was more than an ordinary American wished 
to assume. The laws against apostasy, heresy, non- 
conformity, and opposing the ordinances of the estab- 
lished church, against libel and treason, and the severity 
of government in construing these laws, were such as to 
make it necessary to give definition to what might be 
considered an "abuse."' Under the regime of absolu- 
tism, from which the State was at that time rapidly 
emerging, every force had been employed in the inter- 
ests of those in power. They owed their position to con- 
quest; and it was of highest importance to them that the 
established polity should not be disturbed. One of the 
most powerful influences brought to bear upon the peo- 
ple, to this end, was the church. The teachings were 
framed to protect the established order; therefore apos- 
tasy, that is, "a total renunciation of Christianity, by em- 
bracing a false religion, or no religion at all," was made 
a crime. 

Says Blackstone: 24 

We find by Bracton that in his time apostates were 
to be burnt to death. ****** Yet the loss 
of life is a heavier penalty than the offense, taken in 
civil light, deserves. ***** This punishment, 
therefore, has long become obsolete; and the offense of 
apostasy was for a long time the obect only of ecclesiasti- 
cal courts. ***** B u t about the close of the 
last century the civil liberties to which we were then 
restored being used as a cloak of maliciousness, and the 
most horrid doctrines, subversive of. all religion, being 
publicly avowed, both in discourse and writings, it was 
thought necessary again for the civil power to interpose 
by not admitting those miscreants (mescroyntz, in our 

24 IV Blackstone, Sec. 44. 



POLITICAL ACTIVITIES. 165 

ancient law, is the name of unbelievers) to the privi- 
leges of society who maintained such principles as de- 
stroyed all moral obligation. To this end it was enacted 
by statute 9 and 10, William III., C. 32, that if any 
person educated in or having made profession of the 
Christian religion shall, by writing, printing, teaching or 
advised speaking, deny the Christian religion to be true, 
or the holy scriptures to be of divine authority, he shall, 
for the first offense, be rendered incapable to hold any 
office or place of trust; and for the second be rendered 
incapable of bringing any action, being guardian, execu- 
tor, legatee or purchaser of lands, and shall suffer three 
years' imprisonment without bail. 

For the same reason heresy also came under the ban. 
This crime consisted "not in a total denial of Christianity, 
but of some of its essential doctrines publicly and obsti- 
nately avowed." 25 What should be adjudged heresy was 
left to the ecclesiastical court, which had almost arbi- 
trary power, and these courts, being dependent on the 
government rather than answerable to the people, were 
used by the powers to their own ends. 

What ought to have alleviated the punishment, the 
uncertainty of the crime, seems to have enhanced it in 
those days of blind zeal and pious cruelty. It is true 
that the sanctimonious hypocrisy of the canonists went 
at first no farther than enjoining penance, excommuni- 
cation and ecclesiastical deprivation for heresy; though 
afterwards they proceeded boldly to imprisonment by 
the ordinary, and confiscation of goods in pios usus. 
But in the meantime they had prevailed upon the weak- 
ness of bigoted princes to make the civil power subser- 
vient to their purposes, by making heresy not only a tem- 
poral but even a capital offense 26 * * * by statute 
9 and 10, William III., C. 32, if any person educated 
in the Christian religion or professing the same shall, by 
writing, printing, teaching or advised speaking, deny any 

25 IV Blackstone, Sec. 45. 

26 The making of the offense capital often caused the estates 
of the condemned to revert to their prosecutors. 



166 THE GROWTH OF DEMOCRACY. 

one of the persons in the Holy Trinity to be God, or 
maintain that there are more gods than one, he shall un- 
dergo the same penalties to be inflicted on apostasy by 
the same statute. 27 

A national church having been established, non-con- 
formity deprived one of many of the rights of citizen- 
ship. 

Says the commentator: 

If through weakness of intellect, through perverseness 
and acerbity of temper, or (which is often the case) 
through a prosepct of secular advantage in herding with 
a party, men quarrel with the ecclesiastical establish- 
ments, the civil magistrate has nothing to do with it, 
unless their tenets and practice are such as to threaten 
ruin or disturbance with the State. He is bound, indeed, 
to protect the established church; and if this can be 
better effected by admitting none but its genuine mem- 
bers to offices of trust and emolument, he is certainly 
at liberty so to do. 28 

Opposing or reviling the ordinances of the established 
church was considered 

A crime of much grosser nature than mere non- 
conformity, since it carries with it the utmost indecency, 
arrogance and ingratitude; indecency by setting up 
private judgment in virulent and factious opposition 
to public authority; arrogance by treating with con- 
tempt and rudeness what has at least a better chance 
to be right than the singular notions of any particu- 
lar man; and ingratitude by denying that indulgence 
and undisturbed liberty of conscience to the members 
of the established church which the retainers of every 
petty conventicle enjoy. 29 

Such were the restrictions at common law upon speech, 
press and action relative to the established church. 

27 IV Blackstone, Sees. 45-50. 2S IV Blackstone, 53. 
29 IV Blackstone, 51. 



POLITICAL ACTIVITIES. 167 

In the same manner the sovereign wove about himself 
and courtiers the legal fabric of treason. It is written 
by Plutarch that Dionysius executed a subject for hav- 
ing dreamed that he had killed him. Edward IV. con- 
victed a citizen of London for having said that he 
would make his son heir to the crown — this, the crown, 
being the symbol of the house in which they lived ; 30 and 
again another, whose favorite buck had been killed by 
the King while hunting, was convicted of treason for 
wishing it horns and all in the King's belly. 31 In order 
to guard the King's household against suspicion of bas- 
tardy, it was made treason "if a man do violate the 
King's companion (wife), or the King's eldest daughter 
unmarried, or the wife of the King's eldest son and 
heir;" 32 so also copying the King's great and private 
seal, 33 and counterfeiting the King's money, 34 etc. The 
lengths to which the King might go in this particular, 
and the indefiniteness of the law makes it plain that this 
power would be a menace to the popular liberty. 

Another class of acts that would be considered an 
"abuse," for which the citizen would be held responsible, 
falls under what was known to the common law as libel. 
Says Cooley: 35 

At the common law it was indictable to publish any- 
thing against the constitution of the country, or the 
established system of government. The basis of such 
a prosecution was the tendency of publications of 
this character to excite disaffections with the govern- 
ment, and thus induce a revolutionary spirit. The 
law always, however, ' allowed a calm and temperate 

30 IV Blackstone, Sec. 80. 
" Id., 80. 

32 Id., 81. 

33 Id., 84. 

34 Id., 83. 

35 Cooley, Const. Lim., Sec. 427. See, also, Hallam's Const. 
Hist, of England, Vol. II, p. 376-7 (New York Ed). 



168 THE GROWTH OF DEMOCRACY. 

discussion of public events and measures, and recog- 
nized in every man a right to give any public matter a 
candid, full and free discussion. It was only when a 
publication went beyond this that it became criminal. 
It cannot be doubted, however, that the common law 
rules on this subject were administered in many cases 
with great harshness. This was especially true during 
the long and bloody struggle with France at the close 
of the last and beginning of the present century, and for 
a few subsequent years, until a rising public discontent 
with political prosecutions began to lead to acquittals. 

. The same may be said of slander. The fact that what 
was spoken, written or published was true was no ex- 
cuse. The greater the truth the greater the crime, for if 
there be great truth in the statements then there was so 
much the more danger of the people becoming disaf- 
fected with the established order, and of being moved to 
action in opposition to the government. 

These shackles, imposed by a despotic government 
upon the people to sustain an order established for the 
benefit of the rulers during a regime of conquest, were 
stricken out and doomed to perpetual disuse by our writ- 
ten constitutions. All religious restraint was removed; 
treason was defined, and the people protected from prose- 
cutions for libel. The fundamental theory of our gov- 
ernment is such as to preclude such restraints. As to 
religion, it has come to be the established doctrine. 
"That religion, or the duty which we owe to our Creator, 
and the manner of discharging it, can be directed only 
by reason and conviction, not by force and violence; 
and therefore all men are equally entitled to the free 
exercise of religion according to the dictates of con- 
science; and that it is the mutual duty of all to practice 
Christian forbearance, love and charity towards each 
other. That no man ought of right to be compelled to 
attend any religious worship, or erect or support any 
place of worship, or maintain any ministry contrary to 



POLITICAL ACTIVITIES. 169 

or against his own 'free will and consent." The church 
and State have been forever separated in our polity. 
Treason has been defined as consisting "only in levying 
war against the government, or in adhering to its 
enemies or giving them aid or comfort." For the pro- 
tection of the people against prosecutions for libel pro- 
visions have been made, such as: "In all criminal prose- 
cutions for libel the truth may be given in evidence to 
the jury; and if it shall appear to the jury that the sub- 
ject matter charged as libelous is true, and was pub- 
lished with good motives and for justifiable ends, the 
party charged shall be acquitted." 36 In many of the con- 
stitutions, in order that prosecutions of this kind shall 
be taken out of the hands of the organized departments 
of government, as far as possible, it is further provided 
that "the jury shall have the right to determine the law 
and the fact." 37 While in others the guaranty is still 
further extended by including "all suits and prosecu- 
tions," civil and criminal. 38 

So much for the constitutional guaranties of peace- 
able assembly and free intercourse among the people on 
all subjects pertaining to the general welfare. We now 
turn our attention to the main purpose of these guaran- 
ties. The end in view is not the satisfaction that may 
be derived by the people from speaking, writing or print- 



se Ark., 1874, II, 6; 1868, I, 2; Fla., 1868, I, 10; 111., 1818. 
VIII, 23; 1848, XIII, 24; Ind., 1816, I, 10; Iowa, 1846, I, 7, 
1857, I, 7; Kans.. 1855, I, 11, 1858, I, 11, 1859, B. of R., 11; 
Neb., 1875, I, 5; Nev. 1864, I, 9; Ohio, 1851, I, 10. 

a7 Cal., 1849, I, 9: Del., 1792. I. 5- 1831, I, 5; Ind., 1816, I, 10; 
Ky., 1792, XII, 1799, X, 8; 1850, XIII, 10; Me., 1820, I, 4; 
Mich., I, 7; Miss., 1817, I, 8; 1832, I, 8; Neb., 1866, I, 3; N. 
J.. 1844, I, 5; N. Y., 1821, VII, 8, 1846, I, 8; Ohio, 1802, VIII, 6; 
Perm., 1790, IX, 7, 1838, IX, 7, 1873. I, 7: Term., 1796, XI. 19; 
1834, I, 19; 1870, I, 19; Tex., 184=;, I, 6; 1866, I, 6; 1868, I, 6; 1876. 
I, 8; Wis., 1848, I, 3. 

»* Colo., 1876, II, 10; Conn.. 1818, I, 5; Ga., 1868, I. 19; 111., 
1870, II, 5; Mo., 1820, XIII, 16; 1865, I, 27; Mo., 1875, II, 14; 
R. I., 1842, I, 20. 



170 THE GROWTH OF DEMOCRACY. 

ing — rather, that their will, having by free discussion 
taken definite form, may be expressed in law. What are 
the means provided by our government whereby the will 
of the people may be expressed in forms of law? One 
of the direct means is found in the constitutional guar- 
anties of popular assembly, a very common form of 
which is as follows: "The citizens have a right, in a 
peaceable manner, to assemble together for the common' 
good, and to apply to those invested with the powers of 
government for redress of grievances or other purposes, 
by petition, address or remonstrance." 33 Here we have 
stated the rights of petition. Another common form is 
that "the right of the people peaceably to assemble, to 
consult for the common good, to petition, by address or 
remonstrance, the government, or any department there- 
of, shall never be abridged," 40 and again, "the citizens 
have a right, in a peaceable manner, to assemble together 
for the common good, to instruct their representatives," 
etc. 41 In these we not only have the guarantee of the 
right of petition, but also the right of party organization 
clearly expressed. The direct methods of making the 
popular will known to governmental agents are at least 
two, i. e., by petition and by instruction. The former 



39 Ala., 1819, I, 22; 1865, I, 26; 1867, I, 27; 1875, I, 26; Colo., 
1876, II, 24; Conn.. 1818, I, 16; Del., 1792, I. 16; 1831, I, 16; 
Fla., 1838, I, 20; 1865, I, 20; Ky., 1892, XII (Poore, 655); 1799. 
X, 22; 1850, XIII, 24; Miss., 1817, I, 22; 1832, I, 22; 1868, I, 6; 
Mo., 1820. XIII, 3; 1865, I, 8; 1875, I, 29; Neb., 1866, I, 4; Tex., 
1865, I, 19; 1866, I, 19; 1868, I, 19; 1876, I, 2T. 

40 Ark.. 1874, II, 4; Cal., 1849, I, 10; Fla., 1868, I, 11; 111., 
1818, VIII, 19; 1848, XIII, 21; 1870, II, 17; Ind., 1816, I, 19, 
1851, I, 31; la., 1846, I, 20; 1857, I, 20; Kans., 1855, I, 3; Kans., 
1857. B. of R., 18; 1858, I, 3; 1859. B. of R., 3; Me., 18.20, I, 15; 
Mass., 1780, XXIX; Mich., 1835, I, 20; Neb., 1875, I. 32; N. H.. 
1784, I, 32; 1792, I, 32; N. J., 1844, I, 18; N. C, 1776, Dec. of 
R., XVIII; 1868, I, 25; 1876, I, 25; Ohio, 1802, VIII, 19; 1851. 
I, 3; Ore., 1857, I, 27; Penn., 1776, Dec. of R., 8; Vt., 1777, I, 18; 
1786, I, 22; 1793, I, 20; W. Va., 1872, III, 16; Wis.. 1848. I. 4. 

41 Ark., 1836, II, 20; 1864, II, 20; 1868, II, 4; Kans., 1857, B. 
of R., 18; Tenn., 1796, XI, 22; 1834, I, 23; 1870, I, 23. 



POLITICAL ACTIVITIES. 171 

takes a non-partisan form and appeals for certain de- 
sired measures directly to those in power, and is often 
very effective in influencing legislative action, either to 
make known particular wants, or to thwart measures 
that seem opposed to the public welfare. 42 The latter 
finds expression in "party platforms" and pre-election 
pledges. The people holding to certain political tenets 
meet together, form a "platform," or a statement of 
principles, and then nominate candidates to stand for 
election on this platform. The candidate, though not 
legally bound to follow these instructions, is bound on 
honor and party faith to direct all his effort toward the 
fulfillment of the pledges of the party, though as to 
measures which do not fall within these pledges he is 
entirely free. 

The indirect method by which the popular will may be 
impressed on the government is through the representa- 
tives — persons chosen by the people of a definite com- 
munity to represent their interests in legislative assem- 
blies and on administrative boards. 43 That the popular 
representatives might be free to voice their own senti- 
ment and that of the constituency, the safeguards and 



42 So far as the writer is informed no attempt was ever made 
by the government to overthrow or deny the right of petition 
except during the fierce slavery agitation in Congress about 
1837 and later. See Congressional Record, 1837, et seq. 

43 The power of the electorate over the representatives is 
largely due to our system of short tenures. It is claimed by 
many that, by reason of his desire to please his constituency 
and thereby obtain their suffrages at the next election, the officer 
is made even too subservient to the popular will; that he be- 
comes a follower rather than a leader of popular opinion. Be 
that as it may, the history of all popular government has demon- 
strated the fact that this method, though indirect, is one of the 
most forcible means of impressing the popular will on the gov- 
ernment. Before the reform act in England, Parliament was 
subservient to the interests of the property and governing 
classes. After the reform acts, when the electorate was broad- 
ened to include a wide range of population, the laws immedi- 
ately took on a different spirit, and government became very 
distinctly democratic. . 



172 THE GROWTH OF DEMOCRACY. 

privileges enjoyed by the British Parliament were in- 
voked here. For example, in Maryland, 1776, 44 it was 
provided "that freedom of speech and debates or pro- 
ceedings in the legislature ought not to be impeached in 
any other court or jurisdiction." 45 In the Articles of 
Confederation, 1777, the guarantee was given that "free- 
dom of speech and debate in Congress shall not be im- 
peached or questioned in any court or place out of Con- 
gress, and the members of Congress shall be protected 
in their persons from arrest and imprisonment during the 
time of their going to and from, and in attendance on 
Congress, * * * except for treason, felony or 
breach of the peace." 46 

In Massachusetts, 1780, 47 "the freedom of deliberation,- 
speech and debate in either house of the legislature is 
so essential to the rights of the people that it cannot 
be the foundation of any accusation or prosecution, ac- 
tion or complaint, in any other court or place whatso- 
ever." 48 The constitution of the United States, 1787, 
privileges senators and representatives from arrest "dur- 
ing their attendance at the sessions of their respective 
houses, and in going to and coming from the same," 49 
and most of the constitutions have provisions of like pur- 
port. 

Not only are the representatives given immunity from 
prosecution for utterances and acts while serving the 
people in official capacity, but the proceedings of the 
government are made public, so that the people may 
know how their agents are serving them. The provi- 
sions requiring the legislature "to keep a journal of its 



44 Md. Const., 1776, Dec. of R., VIII. 

45 This without doubt was taken from the English law. 

46 Articles of Confederation, V. 

47 Const. 1780, Pt. I, XXI. 

48 This was followed in N. H., 1784; Vermont, 1786. 

49 Const, of U. S., I, 6. 



POLITICAL ACTIVITIES. 173 

proceedings, and from time to time to publish the same, 
except such parts as in their judgments require secrecy," 
was an innovation on European practice in the interest 
of popular rights and power. 50 N 

In all these provisions it may be noticed that the 
people could take no authoritative part in acts of govern- 
ment whereby their will might be formulated and given 
expression in such a manner as to have the sanction of 
law. They were granted the right peaceably to assem- 
ble, and having assembled, to communicate their 
thoughts; they were given the right to "consult for the 
common good;" they were accorded freedom of speech 
and press; they were protected against the arbitrary 
prosecution of government for treason; they were re- 
lieved from oppressive prosecutions for libel and slan- 
der; they were freed from the fictions of heresy, apos- 
tasy, non-conformity and other restraints on religious 
thought and action. They were accorded the right "to 
apply to those invested with powers of government for 
redress of grievances or other proper purposes, by peti- 
tion, address or remonstrance," They were given power 
"to instruct their representatives." Finally the repre- 



50 "By a fiction not very far removed from the truth, the 
Parliament was supposed to sit with closed doors. No offi- 
cial publication of its debates was provided for, and no other 
allowed. (In 1641 Sir Edward Deering was expelled and im- 
prisoned for publishing a collection of his own speeches, and 
the book was ordered to be burned by the common hangman.) 
The brief sketches which found their way into print were usu- 
ally disguised under the garb of discussions in a fictitious Par- 
liament held in a foreign country. Several times the Parlia- 
ment resolved that any such publication, or any intermeddling 
by letter-writers, was a breach of their privileges, and could 
be punished accordingly upon discovery of the offenders. For 
such a publication in 1747 the editor of the "Gentleman's Maga- 
zine" was brought to the bar of the House of Commons for 
reprimand, and only discharged on expressing his contrition. 
The general publication of Parliamentary debates dates only 
from the American revolution, and even then was still consid- 
ered a technical breach of privilege." — Cooley, Const. Lim., 
Sec. 418. 



174 THE GROWTH OF DEMOCRACY. 

sentatives were made responsible to the people at large 
for their official acts; re-election was made dependent 
on subservience to the popular will, and in order that the 
people might know what these official acts have been, 
the government was required to publish a record of pro- 
ceedings. 

The next step in the evolution of popular representa- 
tive government was to provide the means whereby the 
popular will might be impressed on the government by 
authoritative act of the people themselves. This means 
has come to be known as the "popular initiative," a de- 
vice whereby the people may initiate acts of govern- 
ment without being dependent on the will or caprice jpf 
their official servants. 

Among the first instances of the use of the popular 
initiative in general government in this country was that 
employed in Rhode Island. In 1647 tne town of Provi- 
dence sent a "committee" to Portsmouth to meet with 
a committee from the other towns to form a "common 
government." 51 The plan of government devised by 
these committees was one in which laws of general im- 
portance were required to be initiated in some town 
meeting, and notice thereof given to the other towns. 
The other towns approving of the measure, they re- 
ported their action to the next general court of legisla- 
ture through their committees. If the measure passed 
the legislature the law was then referred back to the 
people for ratification at the next general assembly of all 
the people. Other forms of initiative may be found in 
the colonial governments. 

In the first State constitutions several provisions for 
example, the Georgia constitution of 1777, Art. LXIII, 
"popular initiative" of the amendments are found. For 
provides: "No alteration shall be made in the constitu- 

51 Town Government in Rhode Island (Foster), p. 10; x 
Rhode Island Col. Rec., 42. See, also, supra, Chap. II, p. 59. 



POLITICAL ACTIVITIES. 175 

tion without petitions from a majority of the counties, 
and the petitions from each county to be signed by a 
majority of the voters in each county in the State; at 
which time the assembly shall order a convention to be 
called for that purpose, specifying the alterations to be 
made according to the petitions referred to the assem- 
bly by the majority of the counties as aforesaid." 
Massachusetts — Const. 1780, Art. V, Chap. VI — had the 
following device: "The general court, which shall be 
in the year of our Lord one thousand seven hundred 
ninety-five, shall issue precepts to the selectmen of the 
several towns and to the assessors of the unincorporated 
plantations directing them to convene the qualified 
voters of their respective towns and plantations for the 
purpose of collecting their sentiments on the necessity 
or expediency of revising the constitution in order to 
amendment. And if it shall appear by the returns made 
that two-thirds of the qualified voters throughout the 
State * * * are in favor of such revision or amend- 
ment the general court shall issue precepts * * * to 
the several towns to elect delegates to meet in conven- 
tion for the purpose aforesaid." 

The subjects in which the popular initiative has been 
most frequently employed have been those pertaining 
to local government. The provisions for popular initia- 
tive in local government have been of two kinds, viz., 
constitutional and statutory. 

The constitutional provisions have been confined 
largely to the division of counties, 52 the relocation 
of county seats, 53 the incorporation of cities and 

sa Const, of S.'C, 1895, VII, i, 2. 

53 Constitution of South Dakota, 1889, Art. IX, Sec. 3, pro- 
vides: "Whenever a majority of the legal voters of any organ- 
ized county shall petition the county board to change the loca- 
tion of the county seat, which has once been located by a ma- 
jority vote, specifying the place to which it is to be changed, 
said county board shall submit the same to the people of said 
county at the next general election." 



176 THE GROWTH OF DEMOCRACY. 

towns, 54 the establishment of new courts, 55 etc. 

Statutory provisions for popular initiative have been 
used for a variety of subjects, as the impounding of stock 
in cities and towns, 56 the sale of school lands, 57 the sup- 
port of paupers, 58 the organization of cities and towns, 59 
minority representation, 60 the establishment of public 
libraries, 61 matters concerning road tax, 62 the sale of 
liquors, 63 the amount of license, 64 internal improve- 
ment, 65 police. 66 

In general we may say that both the negative and 
positive provisions for impressing the popular will on 
the government have been constantly enlarging; that 
the devices that have proved themselves most efficient 
to this end have been retained and more largely em- 
ployed in all the States; that it has been the general 
drift of popular thought to make the government both 
responsible and responsive. 



04 Constitution of South Carolina, 1895, II, 13. 

55 The constitution of W. Va., Art. VIII, Sec. 29, had the fol- 
lowing: "The legislatures shall, on application of any county, 
reform, alter or modify the county court established by this 
article, in such county and lieu thereof with the consent of a 
majority of the voters of such county voting at an election, 
create another tribunal for the transaction of the business re- 
quired by the county court created by this article," etc. 

56 ,See Statutes of Ark., Mo., 62 Stat, of 111. 
111., Kans. and Tex. 63 Stat, of Miss., N. J., N. C, 

07 See Statutes of Arkansas. O., Va. 

58 See Statutes of Illinois. M Stat, of Wis. 

59 Stat, of 111. 65 Stat, of Neb. 

60 Id. 6G Stat, of Nev. 

61 Stat, of Mo. 



LEGISLATION AND ADMINISTRATION. 17? 



CHAPTER VIII. 

POPULAR CO-OPERATION IN LEGISLATION AND 
ADMINISTRATION (i) UNDER THE UN- 
WRITTEN CONSTITUTION. 

Since the establishment of representative govern- 
ment, provisions for popular co-operation in legislation 
and administration have been of two kinds, viz., those 
made by the legislative branch of government and those 
made by the constituent assembly — the constitutional 
convention. The first class of provisions is found in the 
statutes, the second in the written constitutions. In both 
co-operation takes the form of the referendum. Chron- 
ologically the statutory provisions appear first; for this 
reason they will be first considered. 

In establishing a federal government it became nec- 
essary to have a federal constitution. 1 By experience 
it had been found that a league, based on treaty, was 
wholly inadequate. A central' government was needed 
having power to act and power to bind all of the States 
by its acts, even to the extent of coercion. To give a 
central government such powers, however, would be 
most dangerous unless the extent of those powers and 
the manner of their exercise are defined and limited. 
The creation, definition and limitation of these powers 
required a written constitution that could not be changed 
by the ordinary acts of government. 

The establishment of a federal constitution must, in 

1 This fact was recognized by the German people in the for- 
mation of the Empire, and by the Swiss in the establishment of 
their federal government. The same fact must be recognized 
and adopted by Britain before a federated government, broad 
enough to include the colonies, will be possible. 
12 



178 THE GROWTH OF DEMOCRACY. 

the nature of things, modify the constitutions of the sev- 
eral governments federated. 2 Therefore, by the very 
act of adopting the constitution of the United States, the 
constitutions of all of the several States were modified. 
The people had made for themselves a new government 
throughout; a government in which certain powers were 
given to the federal government and certain powers were 
retained by the States. But the people of the several 
States, having suffered from the uncertainty and abso- 
lutism of the British constitution, had, prior to the adop- 
tion of the federal form, also placed above the State 
governments a higher written law adopted by constitu- 
ent assemblies. These constitutions, as modified by the 
adoption of the federal plan, were for the time being 
retained. In so far as the federal and State constitutions 
so adopted did not provide for the organization and 
exercise of powers of government, the unwritten con- 
stitution remained in force. 3 By the unwritten consti- 



2 The result will be the same whether the several States have 
written or unwritten constitutions. The federal constitution, 
being the highest law, in so far as it applies, all the inferior 
constitutions are modified to that extent, and there is a new 
frame of government established throughout the federated em- 
pire. It was a failure to recognize this fact that caused so much 
controversy over "State sovereignty." 

3 Mr. Dicey in "The Law of the Constitution," p. 22, defines 
constitutional law as follows: "Constitutional law, as the term 
is used in England, appears to include all rules which directly 
or indirectly affect the distribution or exercise of the sovereign 
power of the State. Hence it includes (among other things) 
all rules which define the members of the sovereign power, all 
rules which regulate the relation of such members to each other, 
or which determine the mode in which the sovereign power, or 
the members thereof, exercise this authority." 

Mr. Cooley defines a constitution as "that body of rules and 
maxims in accordance with which the powers of sovereignty 
are habitually exercised." * * * "The fundamental law of a 
State * * * regulating the division of the sovereign powers 
and directing to what persons each of these powers is to be 
confined, and the manner in which it is to be exercised." But 
later the same author says: "In American constitutional law 
the word constitution is used in a restricted sense, as implying 
the written instrument agreed upon by the people of the 



LEGISLATION AND ADMINISTRATION. 179 

tution the legislature had full power to make such con- 
stitutional provisions and modifications as it wished. 
In so far, however, as the law was not declared by the 
legislature the common law, judicial precedents and im- 
memorial customs were recognized as the established 
order. 

The constitution of government in the United States 
after the adoption of the federal plan, stated in order 
of precedence, was made up as follows: 

i. "The constitution of the United States" in so far 
as it applied. 

2. The "constitutions" of the several States in so far 
as they made provision for the structure and exercise 
of the powers of government. (These, the federal and 
State "constitutions," were superior to the government, 
having been adopted by constituent assemblies, and 
were of equal force; each was supreme within its re- 
spective sphere, but subordinate within the sphere of 
the other.) 

3. The constitutional provisions of statutes of the 
United States and the State governments within their 
several spheres. 

4. The constitutional rules of common law and judi- 
cial precedent. 

5. The constitutional rules contained in immemorial 



union or of any one of the States." This later "American" 
use of the word is wholly illogical and has led to many errone- 
ous conclusions. There is no reason why the provision made 
for the office of State comptroller or auditor when found in a 
"written instrument" agreed upon by the people, should be held 
constitutional, and an identical provision found in the statutes, 
when "the people" have delegated the power of making such 
provision to the legislature not constitutional. From every 
logical standpoint, all provisions regulating the division of the 
sovereign powers, directing to what persons these powers are 
to be confined, and the manner in which they are to be exer- 
cised, are equally constitutional provisions, whether found in 
the "written instrument," the statutes, the common law or the 
immemorial customs of an office. 



180 THE GROWTH OF DEMOCRACY. 

customs of office and government. In 1787 the powers 
of government were established and have since been 
exercised under and according to this complex consti- 
tution. Considering the constitutionality of an act, it 
must be tested by these rules and according to their 
precedence. 4 The first two forms of constitutional law 
we will call the written constitution because contained 
in certain definite "written instruments." The last three 
forms of constitutional law we will, for convenience, call 
the unwritten constitution because dependent on an url- 
written or customary exercise of power. 5 

By the written constitution the legislative powers in 
the federal government were given to Congress, 6 and 
the legislative power of the several States was given 
to the several State legislatures. 7 These were made the 
constitutional organs, the only lawful agents of the 
State for the enactment of the general laws of the State 
and the nation. Any attempt made by any other organ 



4 If a sheriff has performed some act and his power has been 
questioned, the determination of his powers and test of their 
legal exercise would be found in these rules. If his act were 
supported by any of them, and did no violence to a higher 
rule, his act would be held valid. 

5 While statute law is written, the rule for the exercise of the 
power which gives it validity, in so far as not contained in the 
written constitution, is wholly a matter of unwritten or custo- 
mary law. It may be said to be a common law, or inherent 
power of the legislature 

"All legislative power herein granted shall be vested in a 
Congress of the United States, which shall consist of a Senate 
and House of Representatives." — Constitution of the United 
States, Art. I, Sec. 1. 

This is modified by the power of the President to veto or ap- 
prove, id., Art. I, Sec. 7. 

7 The general form of the constitutional provision for the 
States is "The legislative power shall be vested in the General 
Assembly (legislative) which shall consist of a Senate and a 
House of Representatives." In nearly all of the States, how- 
ever, the governor is made a part of the legislature in so far as 
that he is required to exercise the power of approval or veto, 



LEGISLATION AND ADMINISTRATION. 181 

or body to make general laws and any attempt made 
by these agencies to delegate the exercise of their powers 
specifically granted, would be null and void. Therefore, 
except as might be specifically provided within these 
constitutions, no statute providing for popular co-opera- 
tion in general legislation for the several States or the 
United States would be valid. 

As to the local administrative subdivisions of the 
United States and the several States there were few 
provisions made in the written constitutions for their 
organization and government. Therefore, concerning 
the organization and powers of all local and adminis- 
trative agents not specifically provided for in the written 
constitutions the government was left free to act accord- 
ing to the unwritten constitutions. 

As has already been observed, it had been quite cus- 
tomary in the original small communities to govern 
by popular assembly. After the political organization 
had so broadened that it became inconvenient for all 
of the people within one jurisdiction to assemble, the 
representative plan was adopted. In the organization 
of the complex and concentrically widening system of 
government, composed of the ward or school district, 
the town or township, the county, the legislative or judi- 
cial district, the State, the Empire, the popular assem- 
bly was still retained for the school district, the New 
England town and the township, but as to all other sub- 
divisions was abandoned. In these, however, it was 
often desirable to consult the will of the people relative 
to particular legislative and administrative acts. In so 
far as there were no special provisions in the written 
constitution for the organization and exercise of powers 
in these jurisdictions, the legislature of the State under 
the unwritten constitution had full sway. By virtue of 
this fact provisions were very commonly made by the 
legislatures for an expression of the popular will for 



182 THE GROWTH OF DEMOCRACY. 

popular co-operation in acts of local legislation and 
administration. 

The most prevalent form of popular co-operation in 
acts of legislation and administration in the early period 
was that providing for the initiation of these acts by 
petition. This appeared in the incorporation of towns, 
the organization of school districts, towns, counties, etc., 
borrowing of money, subscription to stock in business 
corporations and public improvements. Gradually, 
however, as the governing bodies came to be less in 
touch with the people, the referendum was more fre- 
quently used. 

The only instance of the use of the referendum under 
the federal government that the author has found is 
that provided for in the act of July 9, 1846, for the 
recession of a part of the District of Columbia to the 
State of Virginia. By this act Congress submitted to 
the qualified electors of the district the question of reces- 
sion, provided the machinery for election, and enacted 
that if a majority of the electors should be against accept- 
ing the provisions of this act, it should be void and of 
no effect; but if a majority of votes should be in favor 
of accepting, then it should be in full force. In that 
event it was made the duty of the President to inform 
the governor of the cession so made. 

The subjects of referendal provisions made by the 
legislatures of the States during the first fifty years of 
our national life were comparatively few. Some of them 
indicate a transition from the popular assembly to the 
general act, with local option provisions, as, for ex- 
ample, the school law of Maine, passed at the first 
session of the legislature after it became a State. 8 The 
provisions are as follows: 

Be it further enacted, That the several towns and 



8 Laws of Maine, 1822, p. 404, sec. 7, et seq. 



LEGISLATION AND ADMINISTRATION. 183 

plantations be, and hereby are, authorized and empow- 
ered to determine the number and define the limits of 
the school districts within the same. * * * 

That the inhabitants of any school district qualified to 
vote in town affairs be, and they hereby are, empowered, 
at any district meeting called in manner herein pro- 
vided, to raise money for the purpose of erecting, repair- 
ing, purchasing or removing a school house and of pur- 
chasing land upon which the same may stand, and 
utensils therefor, and to determine whether the said 
school house shall be erected or located in said district; 
and also to determine at what age the youth within 
such district may be admitted into a school kept by a 
master or mistress, and whether any scholars shall be 
admitted into such school from other school districts. 

In case the people voted in favor of these propositions 
certain other provisions might be invoked to carry these 
first, or optional provisions, into effect. 

To the same purpose was Act No. 143, Laws 1826, of 
Massachusetts, one section of which recites: "The in- 
habitants of every town may, if they shall think it ex- 
pedient, carry into effect the provisions of the twenty- 
eighth section, at the common expense of the town so 
far as relates to providing school houses for the school 
districts of the town." The decision having been made, 
then certain other provisions relative to the manner of 
raising taxes would become effective. 

During the same year the legislature of Maryland 
passed "an act for the establishment and support of 
public free schools in the first election district of Balti- 
more county," 9 which was purely referendal. The pre- 
amble is as follows: "Whereas, it has been justly rep- 
resented by the inhabitants of the first election district 
of Baltimore county to the legislature of Maryland that 
a system of public free schools, which should be sup- 
ported by a scale of taxation and depend for its opera- 

9 Laws 1826, Mar. 1, Chapter 142. 



184 THE GROWTH OF DEMOCRACY. 

tion within said district upon the future decision of a 
majority of the voters at the time actually residing in 
such district," etc. The law then provides for a free 
school system subject to adoption by a vote of the 
majority of the electors. 

In 1825 the legislature of Maryland passed a refer- 
endal act for the establishment of a system of primary 
schools. Sections 29 and 30 are as follows: 

Be it enacted, That at the next election of delegates 
of the General Assembly, every voter, when he offers 
to vote, shall be required by the judges of election to 
state whether he is for or against the establishment of 
primary schools, and make return thereof to the legis- 
lature during the first week of the session, and if a ma- 
jority of the said votes in any county shall be in favor 
of the establishment of primary schools, as herein pro- 
vided for, then, and in that case, the said act shall be 
valid for such county or counties, otherwise of no effect 
whatever. 

And be it enacted. That if a majority of the voters of 
any county in the State shall be against the establish- 
ment of primary schools, then, in that case, the said 
act shall be void as to that county. 

In 1816 an election was held in that part of Massa- 
chusetts afterward set off as the State of Maine for the 
purpose of determining whether the people favored a 
separation from the old State, and in 1819 the legisla- 
ture of Massachusetts authorized an election on the ques- 
tion of whether the "District of Maine should become 
a separate and independent State," the condition being 
that, in case the proposition received 1,500 votes, a con- 
vention should be chosen to frame a constitution. 

In 1826 the legislature passed a law fixing the juris- 
diction of the courts of Boston, which provided that a 
favorable vote of the people of the city be had before 
it should go into effect. 

In 1833 and 1835 the Virginia legislature passed two 



LEGISLATION AND ADMINISTRATION. 185 

acts allowing the city of Richmond to subscribe to the 
capital stock of a canal company, but requiring a peti- 
tion of a majority of the electors as a condition prece- 
dent to the legal action on the part of the city officers. 
This was a measure which may be considered a provi- 
sion transitional between the initiatory petition and 
referendal vote, the method being the same as in the 
former and the result the same as in the latter. 

As the sentiment against the liquor traffic became 
strong the referendum was employed as a means of ob- 
taining popular expression on the adoption of local 
liquor laws. For example, in Rhode Island by the act 
of 1845 provision was made that "no licenses shall be 
granted for the retailing of wines or strong liquors in 
any town or city in the State, when the electors of such 
town or city qualified to vote for general officers, shall, 
at the annual town or ward meeting held for the elec- 
tion of town officers, decide that no such licenses for 
retailing as aforesaid shall be granted for that year." 
This subject of referendal provisions became prominent 
by the middle of the century. 

The location of county seats, the division of counties, 
etc., became the subject of referendal provisions in stat- 
utes at a comparatively early date. 

The referendum having stood the test of experience, 
being found an effective check on acts of government 
adverse to the public interests, came to be more widely 
employed. Each year found new uses and new subjects 
for popular co-operation in local legislation and admin- 
istration. It became extended to the general acts of the 
State legislature through the constitutions. All mat- 
ters touching the relocation of seats of government, ter- 
ritorial division, the incurring of indebtedness, the pledg- 
ing the faith of the government as security for local 
or private enterprise, the disposition of properties, fran- 
chises, etc., came to be regarded as proper subjects for 



186 THE GROWTH OF DEMOCRACY. 

referendal elections as a means of adopting or of giving 
validity to such acts. In order that the extent of this 
practice may be realized we give a classified list of the 
subjects of referendal provisions by statutes, and in the . 
footnote references a partial list of the States making 
such provisions. They appear as follows: 

I. Relative to acts of legislation and administration in 
county affairs, (i) The removal of county seats. 10 
(2) The building of county buildings, such as court 
house, jail, etc. 11 (3) The repair of county build- 
ings, the cost of which shall not exceed a specified 
amount. 12 (4) The relocation of county build- 
ings. 13 (5) The organization of new counties. 14 
(6) Changing boundaries of counties. 15 (7) Issu- 
ing bonds and borrowing money. 16 (8) Funding 
the county debt. 17 (9) Adopting a tax on dogs. 18 

(10) Increasing the tax beyond the specified limit. 19 

(11) Adopting a poor law. 20 (12) Purchasing real 
estate. 21 (13) Providing for a poor house. 22 (14) 
Providing for a children's home. 23 (15) Erecting 
monument for soldiers. 24 (16) Relief, by distribu- 
tion of grain, seeds, etc. 25 (18) The building of 
normal schools. 20 (19) Providing for free common 
schools. 27 (20) Providing for administration of 
schools. 28 (21) Providing for county high schools. 29 



10 Cal., Del., Fla., Ind., Iowa, Kentucky, La., Me., Neb., Nev., 
Ohio, Penn., S. C, Wis. 

11 Fla., la., Mo., Ohio. 20 Penn. 

12 Mich. 21 la. 

1 3 Neb. 22 Ohio. 

14 Penn., Ind. 23 la., Kans., Penn., S. C. 
is Cal., Ind., Ky., La., Ohio. 24 la., N. Y„ Ohio. 

™ Kan., Me., Neb., N. C, S. 25 Kan., Neb. 

C, Tenn., Wis. 26 111. 

" Fla., N. Y. 27 Ind. 

is w. Va. 28 Va. 

1 9 Kan., la. 29 la., Kans. 



LEGISLATION AND ADMINISTRATION. 187 

(22) The purchase of toll roads. 30 (23) The adop- 
tion of road law and the selling of bonds. 51 (24) 
Provisions for road board! 32 (25) Provisions for 
county board. 33 (26) The subscription to railway 
stock. 34 (27) The subscription to stock in coal 
mines, artesian wells, natural gas, etc. 35 (28) The 
adoption of liquor laws. 36 (29) Provisions for 
bounty for killing wild animals. 37 (30) Fencing 
for stock. 38 (31) Protection against prairie fires. 39 
II. Relative to legislative and administrative acts in 
cities and towns. (1) As to incorporation. 40 (2) 
The surrender of charter. 41 (3) The consolidation 
of two or more cities or towns. 42 (4) The amend- 
ment of charter. 43 (5) The reorganization of the 
city government. 44 (6) The annexation of terri- 
tory. 45 (7) The recession of territory. 46 (8) The 
classification or gradation of municipalities. 47 - (9) 
The names of towns. 48 (10) The creation of new 

30 Ind. 

31 Ind., Kans., Mich., Minn., Neb., N. J., Ohio., Ore., W. Va. 

32 N. J. 

33 N. J., la. 

34 Ind., Kans., Mo., Minn. 

35 Kans., Neb. 

36 Ark., Ga., Ky., La., Mich., Mo., N. C, S. C., Tex., Va. 

37 Neb. 

38 Ga„ 111., la., Kans., N. C, Penn., Tex., W. Va. 

39 Kans. 

40 Ala., Cal., Colo., Ga., 111., la., Ind., Ky., Kans., Mich., 
Minn., N. J., N. Y., Penn., Tenn., Tex., W. Va., Wis. 

41 Ark, Colo., Fla", 111., Mich., Minn., Neb., N. Y., Tex., Wis. 

42 Cal., 111., Ind., Kans., Wis. 

43 Texas. 

44 Colo., Ind., N. J. 

45 Ala., Ark., Cal., Colo., Fla., Ga., Ind., la., Me., Minn., Mo., 
Neb., Ohio, Tenn., Tex., W. Va., Wis. 

46 Ark., Fla., Tenn., Tex. 

47 Ohio. 

48 Ala., Kans., Minn. 



188 THE GROWTH OF DEMOCRACY. 

wards. 49 (n) Determining whether offices shall be 
elective or appointive/"' (12) Determining whether 
the legislature shall be a popular assembly. 51 (13) 
Determining whether there shall be minority rep- 
resentation."' 2 (14) Determining whether city shall 
subscribe to stock of railways, business corporations, 
etc. 53 (15) Free city libraries. 54 (16) Passing on 
appropriations other than those necessary for the 
regular departments of government. 55 (17) The 
enforcement of the collection of taxes. 56 (18) The 
levy of tax beyond certain limits. 57 (19) The sale 
of real estate belonging to the city. 58 (20) The ac- 
quiring of real estate. 59 (21) The borrowing of 
money. 60 (22) The issuing of bonds. 61 (23) Fix- 
ing the salaries of officers. 62 (24) Determining 
whether road tax may be worked out. 6 -"' (25) 
Whether city may aid in building certain high- 
ways. 64 (26) Concerning the building of certain 
bridges. 65 (27) The closing of streets. 66 (28) The 

49 Ind., N. J.. Penn. 
• r "' Wis. 

■- Conn., N. H., Vt. 
"HI. 

■■'■' Ala., Fla., Kans., Ky., La., Me., Md., Mass., Miss., Va., 
Wis. 

™ Colo., 111., Mich., Mo., N. J., N. Y., R. I., Wis. 

5t " Colo., Kans., Mich., Neb. 

• r - 6 N. J. 

■'• Fla., Mich., Minn., N. J., R. I. 

58 Md. 

69 Md. 

60 Fla., Mich., N. Y., Wis. 

01 Colo., Fla., Ind., Kans., La., Md., Minn., Neb., N. J., N. Y., 
Ohio, W. Va. 

02 Colo. 

63 111. 

64 Colo., 111. 

es Wis., 111., N. Y. 
60 Md. 



LEGISLATION AND ADMINISTRATION. 189 

adoption of liquor law. 67 (29) The fixing of the 
amount of the license. 68 (30) Pensions for police- 
men. 69 (31) Building of city hall. 70 (32) The or- 
ganization of wards for school purposes. 71 (33) The 
selection of sites for schools. 72 (34) The levy of 
special tax for schools. 73 (35) Question of Board 
of Education. 74 (36) The establishment of high 
school. 75 {$j) The length of school term. 76 (38) 
Water supply. 77 (39) As to parks — buying land, 
laying out, encroachments on, etc. 78 (40) The im- 
pounding of stock. 79 (41) The adoption of the 
merit system of civil service. 80 (42) The establish- 
ment of fire department. 81 (43) The increase of pay 
to police. 82 (44) Matters of drainage. 83 (45) Mu- 
nicipal lighting. 84 (46) River improvements. 85 
(47) The building of monuments. 86 

III. As to the formation and administration of levee 
districts. 87 

IV. As to legislative and administrative acts in town- 
ship. (1) Sale of school lands. 88 (2) The leasing 
of school lands. 89 (3) The division of school lands. 90 



67 Ark., Ga., Miss., Minn., Mass., Md., N. J., N. C, R. I., 
S. C, Tex., Wis. 

08 Wis. 73 Ark, N. J., Tenn. 

6 » N. J. ** N. J. 

70 N. J. 75 Wis. 

71 Ark., Mo., N. C. 76 Ark. 

72 Ark. 

77 Colo., Ind., Kans., Md., Mass., Mich., N. J., N. Y., Ohio, 
Penn. 

78 Mass., Penn. 85 Ore. 
»» Ark., 111., Minn., Miss. 86 Wis. 
80 N. J., 111. 87 Ark. 

si N. J. 88 Ala., Ind., La. 

82 N. J. 80 Ind. 

8 " 111., Neb., N. J., N. Y. 90 Ind. 
8*N. Y, 



190 THE GROWTH OF DEMOCRACY. 

(4) The levy of tax for school purposes. 91 (5) 
Liquor licenses. 92 (6) The issue of bonds. 93 (7) 
Subscription to stock. 94 (8) Libraries, parks and 
cemeteries. 05 (9) Holding town meetings. 96 (10) 
Change in name. 97 (11) Adoption of a herd law. 98 
(12) Adoption of a dog law. 99 (13)) Roads and 
bridges. 1 (14) Policemen. 2 (15) Sale of town 
property. 3 

V. As to administration in road districts. 4 

VI. As to administration in irrigation districts. 5 

VII. As to legislation and administration in school dis- 
tricts. (1) Organization of and general provisions 
for. 6 (2) Raising money in. 7 (3) Making loans. 8 
(4) Consolidation of two or more. 9 (5) The selec- 
tion of sites for building. 10 (6) The change of 
boundaries. 11 (7) The establishment of high 
school. 12 (8) The length of term of school. 13 



91 Ind., N. J., Ohio. 3 N. J., Ohio. 

92 Ind., N. C. 4 Cal., Colo. 
»s Kansas, Mich., Ohio. 5 Cal. 

94 Kans., Ohio, Penn. 8 Conn., Mich., Neb., N. J., 
»s Kans., Mich., Ohio, Wis. Mo., Ohio., N. Y., R. I., 

90 111., Me., Mass., Mich., Md., Vt, Wis., Tex. 

Minn., Neb., N. J., R. I., 7 Del., Ky., Minn., Mo., Nev. 

Vt, Wis. N. C, Ore., Tex., W. Va. 

97 Kansas. 8 Mo., Ohio. 

98 Kans., Mich., Mo., N. J., ° Del. 

N. C, Wis. 10 Minn., N. Y., Ohio. 

99 wis. " Mo. 

1 Mich., Minn., Mo., Penn., 12 Ohio. 

Wis. isTenn., W - Va - 

2 Neb. 



JUDICIAL DECISIONS. 191 



CHAPTER IX. 

OPINIONS OF THE COURTS AS TO THE VALIDITY 
OF SUCH ACTS. 

As shown in the previous chapter, popular co-opera- 
tion in our government, in so far as it was not spe- 
cifically provided for in the written constitution, had 
grown up and become a part of our unwritten consti- 
tution. Under this sanction, where the principle of 
representative government was employed, such acts had 
taken on the form of the referendum. 

The first case that has come under our notice, ki 
which the constitutionality of the referendum was ques- 
tioned, arose in Massachusetts, coming before the Su- 
preme Court of that State in 1826. 1 A law had been 
passed by the legislature fixing the jurisdiction of the 
courts of the city of Boston, which provided that a 
favorable vote of the people of that city should be had 
before it should go into effect. The law was attacked 
on the grounds that under a form of representative gov- 
ernment guaranteed by the constitutions of the United 
States and of the State of Massachusetts the legislative 
power had been ceded by the people to a legislature con- 
sisting of a senate and a house of representatives; that, 
having established a constitutional agent, with power to 
exercise the legislative function, laws could be made only 
in the manner presented in the constitution and in no 
other; that the referring of an act of the legislature to 
the people for final passage was a delegation of the legis- 
lative power which was not in accord with the funda- 



1 Wales v. Belcher, 3 Pick., 508. 



192 THE GROWTH OF DEMOCRACY. 

mental principles of our government, and which was an 
attempted infraction of the constitution itself. But the 
Supreme Court, in passing judgment on this point, 
said: 

This objection, for aught we see, stands unsupported 
by any authority or sound judgment. Why not the 
legislature make the existence of any act depend upon 
the happening of any future event? Constitutions them- 
selves are so made; the representative body in conven- 
tion or other forms of assembly fabricates the provisions, 
but they are nugatory unless at some future time they 
are accepted by the people. Statutes incorporating com- 
panies are made to derive their force from the previous 
or subsequent assent of the bodies incorporated. A 
tribunal peculiar to some section of the commonwealth 
may be thought by the legislature to be required for the 
public good and yet may not be acceptable to the com- 
munity over which it is established. We see no impro- 
priety, certainly no unconstitutionality, in giving the 
people an opportunity to accept or reject its provisions. 

In 1837 the same question was raised in Virginia 2 
relative to the constitutionality of the law authorizing 
the city of Richmond to subscribe to the capital stock 
of a canal company, but providing, first, for the submis- 
sion of the law to the people of Richmond for assent. 
Again, the supreme court of the State, speaking through 
Justice Tucker, affirmed the principle of the referendum 
on the ground that — 

The principle of good sense, not less than those of our 
institutions, inculcate the general propriety of leaving 
to individuals and to communities the right to judge for 
themselves what their interest demands, instead of fetter- 
ing and controlling them under the false notion that we, 
the governors, know what is good for them better than 
they themselves. 



2 Goddin v. Crump, 8 Leigh, 120. 



JUDICIAL DECISIONS. 193 

The same principle was presented to the Maryland 
Court of Appeals in 1844 in the case of Burgess vs. 
Pue, 3 the law under consideration being- one providing 
for the establishment of primary schools within such 
counties as by popular vote should accept its provisions. 
The controversy arose on the validity of a tax levied 
under this law, and the court decided that, in its opinion, 

There was no validity in the constitutional question 
which was raised by the appellee's counsel in the course 
of his argument relative to the competency of the legis- 
lature to delegate the power of taxation to the taxable 
inhabitants for the purpose of raising a fund for the 
diffusion of knowledge and the support of primary 
schools. The object was a laudable one, and there is 
nothing in the constitution prohibitory of the delegation 
of the power of taxation in the mode adopted to effect 
the attainment of it. We may say that grants of similar 
powers to other bodies for political purposes have been 
coeval with the constitution itself, and that no serious 
doubts have ever been entertained of their validity. 

Thus the principle of the exercise of the referendum 
under the unwritten constitution had stood without ques- 
tion for about half a century after the adoption of our 
written constitutions, and had been defended by the 
highest courts of those States where question had 
been raised until the famous decision of the Delaware 
Court of Errors and Appeals 4 in 1847, shook the legal 
foundations on which courts theretofore had rested their 
decisions and legislatures had based their action. The 
particular law involved was an act of the Delaware legis- 
lature passed February 19, 1847, "authorizing the people 
to decide by ballot whether licenses to retail intoxicating 
liquors should be permitted. among them." Power was 
given to each county to vote "license" or "no license." 



3 2 Gill, 11. 4 Rice v. Foster, 4 Harr, 479. 

13 



194 THE GROWTH OF DEMOCRACY. 

The reasonings of counsel followed by the courts were 
most subtle. The decision reads as follows: 

The people of the State of Delaware have vested the 
legislative power in a General Assembly, consisting of a 
senate and house of representatives; the supreme execu- 
tive power of the State in a governor, and the judicial 
power in several courts. The sovereign power, 
therefore, of this State resides in the legislative, execu- 
tive and judicial departments. Having thus transferred 
the sovereign power, the people cannot resume or exer- 
cise any portion of it. To do so would be an infraction 
of the constitution and a dissolution of the government. 
* * * Although the people have the power, in con- 
formity with its provisions, to alter the constitution, 
under no circumstances can they, so long as the consti- 
tution of the United States remains the paramount law 
of the land, establish a democracy or any other than a 
republican 5 form of government. It is equally clear 
that neither the legislative, executive or judicial depart- 
ments, separately or all combined, can devolve on the 
people the exercise of any part of the sovereign power 
with which each is invested. The assumption of the 
power to do so would be usurpation. The department 
arrogating it would elevate itself above the constitution, 
overturn the foundation upon which its own authority 
rests, demolish the whole frame and texture of our rep- 
resentative form of government, and prostrate everything 
to the worst species of tyranny and despotism, the ever- 
varying will of an irresponsible multitude. * * * If 
the legislature can refer one subject it can refer another 
to popular legislation. There is scarcely a case where 
much diversity of sentiment exists, and the people are 
excited and agitated by the acts and influence of dema- 
gogues, that will not be referred to a popular vote. The 
frequent and unnecessary recurrence of popular elec- 
tions, always demoralizing in their effects, are among 
the worst evils that can befall a republican government, 



5 It is evident that the court used "republican" as being 
synonymous with representative government as distinguished 
from a government by the people directly,' as in the old colonial 
government by popular assembly. 



JUDICIAL DECISIONS. 195 

and the legislation depending upon them must be as 
variable as the passions of the multitude. Each county 
will have a code of laws different from the other; murder 
may be punished with death in one, by imprisonment in 
another, and by fine in a third. Slavery may exist in 
one and be abolished in another. The law of to-day 
will be repealed or altered to-morrow, and everything 
be involved in chaos and confusion. The General As- 
sembly will become a body merely to digest and prepare 
legislative propositions, and their journals a register, 
of bills to be submitted to the people for their enact- 
ment. 

Finally, the people themselves will be overwhelmed 
by the very evils and dangers against which the founders 
of our government so anxiously intended to protect 
them; all the barriers so carefully erected by the con- 
stitution around civil liberty to guard it against legisla- 
tive encroachment and against the assaults of vindictive, 
arbitrary and excited majorities will be thrown down 
and a pure democracy, the worst of all evils, will hold 
its sway under the hollow and lifeless form of a repub- 
lican government. 

The same year the logic employed by the Delaware 
court was followed by Pennsylvania. 6 

It should be held in mind that the class of legislation 
under consideration is that which has to do with local 
subdivisions of the State — local option laws; that none 
of the cases referred to involve a discussion of the refer- 
endal principle as applied to measures to be voted on 
by people of the State at large. In the case of Wales 
v. Belcher, 7 three reasons were advanced in support of 
the constitutionality of the referendum — first, because 
"constitutions themselves were so made;" second, be- 
cause "statutes incorporating companies are made to 
derive their force from the previous or subsequent assent 
of the bodies incorporated;" third, because "a tribunal 



6 Parker v. Commonwealth, 6 Barr, 507. 

7 3 Pick (Mass.), 508. 



196 THE GROWTH OF DEMOCRACY. 

peculiar to some section of the commonwealth may be 
thought by the legislature to be required by the public 
good, and yet may not be acceptable to the community 
over which it is established." In other words, an analogy 
found in the adoption of constitutions, on precedent 
relating to incorporation, and on expediency. 

The court, in Goddin vs. Crump, 8 relied on the third 
reason set forth above, and, enlarging on it, said: 

The principles of good sense, not less than those of 
our institutions, inculcate the general propriety of leav- 
ing to individuals and to companies the right to judge 
for themselves what their interest demands instead of 
fettering and controlling them under the false notions 
that we, the governors, know what is good for them 
better than they know themselves. 

In Burgess v. Pue," a fourth reason was added in sup- 
port of the constitutionality of such measures, the court 
saying that — 

There was no validity in the constitutional question 
which was raised by appellee's counsel in the course of 
his argument relative to the competency of the legisla- 
ture to delegate the power of taxation to the taxable 
inhabitants. * * * We may say that grants of similar 
powers of other bodies for political purposes have been 
coeval with the constitution itself and that no serious 
doubts have been entertained of their validity. 

Here we have a suggestion of reliance on the unwrit- 
ten constitution, but it is not plain. 

It was unfortunate that the lawyers and jurists of that 
time did not have a better understanding of the true 
nature of our government and a better grasp of the prin- 
ciples underlying the referendum. The first reason set 
forth above in Wales v. Belcher was wholly illogical. It 
is absurd for a court to urge that since the constitution 






»8 Leigh (Va.), 120. 9 2 Gill. (Md.), ij, 



JUDICIAL DECISIONS. 19? 

required the sanction of a popular vote, therefore ordi- 
nary legislation receiving the same sanction would be 
valid. The court seems to have lost sight of the fact 
that the one is the act of a political people setting up its 
government and prescribing the manner in which its 
political function shall be exercised, while the other is 
an attempt to exercise these functions according to the 
plan • prescribed by the political people ; that the one 
is an act of a constituent political body and the other 
of its governmental agent; and yet so potent was this 
reason for evil that we see it appearing long afterward. 
In Caldwell v. Barrett (73 Ga., 604) we find the fol- 
lowing language: "If the constitution, the organic law 
of the State, has been made to depend upon the vote of 
the people, it is not easy to perceive why a local law, an 
act affecting a particular community, shall not be deter- 
mined by the people of that locality." Other cases of 
like tenor might be cited. 

The second reason urged was also very misleading. 
The fact that "statutes incorporating companies were 
made to derive their force from the previous or conse- 
quent consent of the bodies incorporated" has no direct 
analogy with the question in hand. The charter grants 
are, on the one hand, in the nature of contracts in which 
the State and the company are the parties to make them 
valid. On the other hand, in so far as they provide for 
the exercise of sovereignty, they are more analogous to 
constitutions than ordinary laws and the consent of the 
corporation is necessary to put the charters or constitu- 
tions in operation and make them binding; but these 
charters having been agreed upon or accepted, the legis- 
lature may then pass laws not in conflict with charter 
rights governing these companies and the incorporators 
are not consulted at all in such matters. 

The third reason set forth in this case and the one 
urged in Goddin v. Crump was as vicious as the other 



198 THE GROWTH OF DEMOCRACY. 

two. The danger of asserting "the general propriety 
of leaving to individuals and to companies the right to 
judge for themselves what their interests demand instead 
of fettering and controlling them under the false notion 
that we, the governors, know what is good for them 
better than they themselves," is self-evident. The only 
sound principle announced in all three cases was that 
quoted above in Burgess v. Pue, and in this the prin- 
ciple was only faintly suggested. It is therefore, mat- 
ter of little surprise that, with such reasoning as this, 
other courts should see approaching danger' to our in- 
stitutions in the referendum. They saw in our govern- 
ment a representative republic ; they saw that the people 
of the State had vested the legislative power "in a gen- 
eral assembly consisting of a senate and house of 
representatives; the supreme executive power of the 
State in a governor, and the judicial power in the several 
courts." The sovereign power, therefore, it was argued, 
"resides with the legislative, executive and judicial de- 
partments. Having thus transferred the sovereign 
power, the people cannot resume or exercise any por- 
tion of it. To do so would be an infraction of the con- 
stitution and a dissolution of the government." And they 
argued from these premises that, "although the people 
have the power, in conformity with its provisions, to 
alter the constitution, under no circumstances can they, 
so long as the constitution of the United States remains 
the paramount law of the land, establish a democracy 
or any other than a republican form of government." 

What was wrong? At what point does the logic of 
the court in Foster v. Rice break down? Does not the 
whole fault lie in a misconception of the true nature of 
our government and a lack of proper interpretation of 
the intent of the federal constitution in guaranteeing to 
each State a republican form of government? This 
clause of the federal constitution, so far as is known to 



JUDICIAL DECISIONS. 199 

the author, has not been construed by the United States 
court except in the case of Texas v. White, ^ Wall., 721, 
wherein the chief justice said: 

A State, in the ordinary sense of the constitution, is a 
political community of free citizens, occupying a terri- 
tory of defined boundaries and organized under a gov- 
ernment sanctioned and limited by a written constitu- 
tion and established by the consent of the governed. 
* * * There are instances in which the principal 
sense of the word seems to be that primary one to which 
we have adverted, of a people or political community, 
as distinguished from a government. 

In this latter sense the word seems to be used in a 
clause which requires that the United States shall guar- 
antee to every State in the Union a republican form of 
government. 

This construction is certainly very unsatisfactory and 
does not suffice for a definition of the concept "repub- 
lican form of government" as used in the constitution. 
It would seem, however, that at the time of the forma- 
tion of the constitution of the United States the lead- 
ing thinkers of the day had the concept defined in their 
own minds, and that they understood a "republican form 
of government" as presented therein, to mean a repre- 
sentative republic, in its federal and State organization, 
but that the local subdivisions of the State did not enter 
into this concept; that the attempt to extend the inhi- 
bitions of the constitutions and the logic of represenative 
government into the township and other local organiza- 
tions was born of a desire to defeat a local-option liquor 
law. The error which the court made in Rice v. Foster 
and Burgess v. Pue was in ignoring the unwritten con- 
stitution and seeking by implication to carry the logic 
of representative government down to the smallest po- 
litical subdivision. It has been the fault of many courts 
to confine their vision of our government to the exact 
provisions of the written constitution and to exclude all 



200 THE GROWTH OF DEMOCRACY. 

else; and those who have found it to their interest to 
oppose the referendum in the United States have availed 
themselves of this judicial tendency with much satisfac- 
tion to themselves. One can scarcely conceive of a more 
ludicrous position for a court to place itself in than ap- 
pears in Ex rel. Wall, 48 Cal., 279, in which the court 
declares a local-option law unconstitutional and in sup- 
port thereof urges that "our government is a representa- 
tive republic, not a simple democracy. Whenever it 
shall be transformed into the latter, as we are taught by 
all the examples of history, the tyranny of a change- 
able majority will soon drive all honest men to seek 
refuge beneath the despotism of a single ruler." 

The inference here indulged in — that because, accord- 
ing to ancient custom and the unwritten constitution, 
the legislature has made the acceptance of a law by a 
certain local political unit dependent upon a popular vote 
of that local political unit, therefore the safeguards of 
the written constitution are imperiled — is on a par with 
the vagaries employed by the court in Rice v. Foster 
and Parker v. Commonwealth. They overlooked the 
fact that the unwritten constitution is subordinate to, and 
to that extent modified by, both the written constitutions 
and the acts of the legislature, and for that reason any 
act performed under the unwritten constitution could 
not impair these safeguards. 

But the confusion of juridical thought and the subtle- 
ness of the position taken in these two cases of 1847 
was sufficient to throw the court and public into a tur- 
moil for several decades following. It will be of interest 
for us to consider the evolution of thought in this re- 
gard. In 1848, in the People ex rel. v. Reynolds, 5 
Gelm, 1, the Supreme Court of Illinois, passing on the 
validity of a law which provided for the submission of 
the question of the division of a county to a vote of the 
people of that county, the court gave emphasis to the 



JUDICIAL DECISIONS. 



201 



principle that "a law may depend upon a future event 
or contingency for its taking effect" and refused to enter- 
tain the objection made that such a submission to the 
people was a delegation of legislative power. In this 
relation the court said: 

Had this authority been given to a court, instead of 
the voters, we are compelled to think that no complaint 
of its constitutionality would have been entertained; and 
yet there would have been as much delegation of power 
in one case as in the other. To prove this needs no argu- 
ment. If, by leaving this question to the people, the 
republican form of government is to be overturned and 
its principles subverted by a miniature democracy, may 
not the same awful calamities be apprehended from a 
miniature monarchy? 

The first principle here announced was followed in 
1849 by the Supreme Court of Kentucky — Talbot v. 
Dent, 9 B. Mon., 526. The fiction so often employed 
in other cases was set forth as follows: 

It is no objection to the constitutional validity of such 
statutes that they depend for their final effects upon the 
discretionary acts of individuals and others. The legis- 
islative power is not exercised in doing the act, but in 
authorizing it and in prescribing its effects and conse- 
quences. * * * We do not perceive that there is any 
greater abandonment of the legislative will and discre- 
tion necessarily to be implied in referring this question 
as to the execution of the authority and final imposition 
of the tax to a majority of those who are to bear it 
than in referring it to the county court or to the trustees 
or council of a town or city. 

And a few months after the Illinois Supreme Court 
rendered its decision in People ex rel. v. Reynolds, the 
Supreme Court of Pennsylvania adopted its principle 
practically reversing the precedent established in the. case 
before cited. 10 

10 Supra, p. 200. 



202 THE GROWTH OF DEMOCRACY. 

The premises postulated in these early decisions sup- 
porting the constitutionality of the referendum in local 
option laws, briefly stated, are: First, that, "although 
the legislature cannot delegate its power to make laws, 
it can make a law to delegate the power to determine 
some fact or state a thing upon which the law makes 
or intends to make its action to depend;" and, second, 
that, "local option laws are not delegations, in any sense, 
of legislative power. * * * They are made operative 
or not in particular localities, upon certain circum- 
stances, which are referred to the people for determina- 
tion, but when set in operation they derive their origin 
from the original legislative life infused into them as 
general laws of the land." Therefore, they conclude, 
local option laws are constitutional. 

The force with which this logic has appealed to courts 
may be seen in the frequency with which it was fol- 
lowed. We find that more than sixty decisions sup- 
porting the referendum were based wholly or in part on 
this line of reasoning. 

But this reasoning was faulty, in that the major prem- 
ise was not above question. Is it true that the legisla- 
ture may delegate the power to make laws? The consti- 
tutional writers of to-day affirm that the legislature may 
not delegate those powers which have been conferred 
upon it by the people in this written constitution as there 
is an exact prescription, 11 but in matters of local gov- 

11 "One of the settled maxims in constitutional law is, that 
the power conferred upon the legislature to make laws cannot 
be delegated by that department to any other body or au- 
thority. Where the sovereign power of the State has located 
the authority, there it must remain, and by the constitutional 
agency alone, the laws must be made until the constitution 
itself is changed. The power to whose judgment, wisdom, and 
patriotism this high prerogative has been intrusted cannot re- 
lieve itself of the responsibility by choosing other agencies upon 
which the power shall be devolved, nor can it substitute this 
judgment, wisdom, and patriotism, of any other body for those 
to which alone the people have seen fit to confide this sovereign 
tiust. (Cooley, 2nd e<±, p. 116.) 



JUDICIAL DECISIONS. 203 

ernment, relative to which no constitutional provision 
has been made, the common law — the unwritten consti- 
tution — sanctions such delegation of power. Mr. Cooley, 
who so forcefully states the principle that the legisla- 
ture cannot delegate the exercise of power conferred 
upon it by the people in their written constitutions, with 
equal force makes this distinction relative to local gov- 
ernment. His language in this relation is as follows: 

We have already seen that the legislature cannot dele- 
gate its powers to make laws, 12 but fundamental as this 
maxim is, it is so qualified by the customs of our race and 
by other maxims 13 which regard local government that 
the right of the legislature, in the entire absence of au- 
thorization or prohibition to create towns and other in- 
ferior municipal organizations, and to confer upon them 
the powers of local government, and especially of local 
taxation and police regulation usual with such corpora- 
tions, would always pass unchallenged. The legislature 
in these is not regarded as delegating its authority, be- 
cause the regulation of such local affairs as are com- 
monly left to local boards and officers is not understood 
to properly belong to the State and when it interferes, as 
sometimes it must, to restrain and control local action, 
there must be reasons of State policy or dangers of local 
abuse to warrant the interposition. 

The people of the municipalities, however, do not de- 
fine for themselves their own rights, privileges and pow- 
ers, nor is there any common law which draws any 
definite line of distinction between the powers which 
may be exercised by the State and those which must be 
left to the local governments. The municipalities must 
look to the State for such charters of government as the 
legislature shall see fit to provide; and they have a right 
to expect that those charters will be granted with the 
recognition of the general principles with which we are 

familiar. (The charter or the general law under which 

\ s 

12 From what has been said before it is evident that he has 
reference to the power conferred by the written constitution. 

13 No better definition could be found for the unwritten con- 
stitution. 



204 THE GROWTH OF DEMOCRACY. 

they exercise their powers, is the constitution, in which 
they must show authority for the acts they assume to 
perform. They have no inherent jurisdiction to make 
laws or adopt regulations of government; they are gov- 
ernments of enumerated powers, acting by a delegated 
authority; so that while the State legislature may exer- 
cise such powers of government coming within a proper 
designation of legislative power as are not expressly or 
impliedly .prohibited, the local authorities can exercise 
those only which are expressly or impliedly conferred, 
and subject to such regulations and restrictions as are 
annexed to the grant." 14 

This statement of the principles underlying the powers 
of the legislature relative to the political subdivisions of 
the State can be founded on no other basis than the un- 
written constitution. Under this unwritten constitution 
the legislature "may exercise such powers of govern- 
ment coming within, a proper designation of legislative 
power, as are not expressly or impliedly prohibited," by 
the written constitution. 

But the second premise also may be questioned as to 
its soundness. In the first place, the statement the 
"local option laws are not delegations in any sense, of 
legislative power," would not be granted; it would not 
be conceded that, "when set in operation they derive 
their origin from the original legislative life infused into 
them as general laws of the land." The legislature hav- 
ing the power to prescribe in what manner the local 
bodies shall act, has laid down a rule for their action in 
making provision for certain local legislation. Instead 
of leaving to each separate city of the State the right to 
prescribe by ordinance for certain matters, the legislature 
provides that in case any of these cities choose to act in 
these matters, it shall act in a certain manner. We will 
take for example a liquor law; the legislature puts on 



14 Both of these propositions are supported by a long list of 
cases. 



JUDICIAL DECISIONS. 



205 



the statute book a liquor law to apply to all cities that by 
popular ballot choose to be governed by it. This is 
exactly the same process as the passage by the legislature 
of a measure to apply to the whole State in case the 
electors of the State shall by ballot choose to be gov- 
erned by it; and yet, in the latter case, the courts have 
generally declared such an act unconstitutional on the 
ground that it was a delegation of the express powers of 
legislation conferred on the legislature by the written 
constitution, and it is only when the constitution itself 
provides for such a course of legislation that they are 
held to be valid. In the case of a State law referred to 
the people by constitutional provision, it could not be 
said that the law derived its power "from the original 
legislative life infused into it," but that its life was due to 
the conjoint action of both legislature and people. It 
would not be more logical to affirm the same relative to 
a law which had, under the unwritten constitutional 
power, required the sanction of a popular ballot. With 
this melange of theory and chaos of ideas, it is little won- 
der that the referendum was constantly brought into 
question and that a few decisions were recorded adverse 
to this form of legislation. One is surprised that the 
laws involving this principle were so often supported, 
their support resting on such an illogical and unsound 
basis. The true theory of legislation of this kind was 
first essayed by the Supreme Court of Vermont in 1849. 
In Bancroft v. Dumas (21 Vermont, 456) the court said: 

It is objected to the validity of this law that its vitality 
is made to depend upon the will of the people, expressed 
at the ballot box, and hence it is urged that it is not a 
law enacted by the legislature. * * * The granting 
of licenses is made to depend upon the expressed will of 
the people. Can this feature of the statute invalidate the 
law? Is a law to be adjudged invalid because it is 
conformable to the public will? It is in accordance with 



206 THE GROWTH OF DEMOCRACY. 

the theory of our government that all our laws should 
be in conformity to the wishes of the people. Surely, 
then, it can be no objection to a law that it is approved 
by the people. We believe that it has never been doubted 
that it is competent for the legislature to constitute 
some tribunal or body of men to designate proper per- 
sons for inn-keepers and retailers of ardent spirits. Such 
was the character of all our early laws relating to li- 
censing of inn-keepers by authorizing the selectmen and 
civil authority to approbate suitable persons, and restrict- 
ing the county courts to the licensing of such as should 
be approbated; and we are not aware that the consti- 
tutionality of these laws was ever questioned. And at 
one period, during the continuance of the license law of 
1838, the power of determining whether licenses should 
be granted was vested in the selectmen and civil author- 
ity of the several towns. If the legislature could legally 
and constitutionally submit the question whether licenses 
should be granted to the determination of a portion of 
the people, could they not with equal, if not with greater, 
propriety submit it to the decision of the whole people? 

This placed the fundamental power of the legislature 
to provide for the submission of laws of local importance 
to a vote of the people on ancient custom and accepted 
maxims — in other words, on the unwritten constitution. 
As shown before, 15 the Supreme Court of Pennsylvania 
in 1848, in Commonwealth v. Judges, had suggested the 
same principle. They did not seek to put legislation of 
this kind on a par with the written constitution, nor rely 
on the legal quibble that the referendal act and the popu- 
lar consent were not legislative acts, nor deny that it was 
a delegation of power; but many of the cases, following 
the theory employed in Bancroft v. Dumas, declared it 
to be a delegation of legislative power, and asserted the 
doctrine that "The legislature may authorize local bodies 
to legislate in local matters." 

The subjects of legislation that have come under re- 

15 Supra, p. 195. 



JUDICIAL DECISIONS. 207 

view in passing on the constitutionality of local option 
laws have been many, such as the incurring of debt, the 
purchase of bonds and the issuance of others in their 
stead, stock subscription to local enterprise, annexa- 
tion of territory to counties, division of counties and the 
formation of new ones, school tax, the removal of county 
seats, the incorporation of cities and towns, the location 
of parks, the running of stock at large, the regulation of 
elections, night herd law, subsidies to railways, the es- 
tablishment of private schools, determining the jurisdic- 
tion of courts, building levees, supporting bowling alleys, 
providing for roads, borrowing money, the granting of 
licenses, etc. In searching for the cases involving the 
referendal principle in local legislation, the author has 
succeeded in finding 107, and, of these, all but thirteen 
have on one ground or another sustained their validity. 
Arranging them by decades, they present the following 
comparison: 

1820- 1830- 1840- 1850- 

1829 1839 1849 185 9 

Declared unconstitutional o o 2 6 

Declared constitutional 1 1 7 22 

i860- 1870- 1880- 1890- 

1869 1879 1889 189 7 

Declared unconstitutional 1 3 o o 

Declared constitutional 14 19 20 io_ 

It may be said that the principle from a judicial stand- 
point is settled, yet the liquor and corporate interests are 
such that until this attitude has been maintained by the 
courts for years with unanimity, in their efforts to evade 
the provisions of law, we may expect that the courts will 
be appealed to to pass judgment thereon. 

We have confined the discussion, so far, to local op- 
tion laws, i. e., laws affecting the various local subdivi- 
sions of the State that are referred to the people for 
them to exercise their option in accepting or rejecting 
the legislative measure in question. There is another 



208 THE GROWTH OF DEMOCRACY. 

class of legislation involving the referendum which has 
also come before the courts. I refer to acts intended to 
be general, affecting the whole State, and which have 
been referred by the legislature to a vote of the electors 
of the State. 

One of the first and most noted cases of this class is 
that of Barto v. Himrod, 4 Seld. (N. Y.), 483, the final 
decision in which was rendered in 1853 by the New 
York Court of Appeals. In the year 1849 ^ le legislature 
of that State had passed an act known as "The Free 
School Law." In this enactment the legislature pro- 
vided that it should become operative from and after 
January 1, 1850, if a majority of all the votes cast at an 
election to be held throughout the State should be in 
favor of it, but void in case it did not receive such a ma- 
jority. Several cases arose in different parts of the 
State, and in Barto v. Himrod the Court of Appeals de- 
cided the law unconstitutional. Chief Justice Ruggles, 
delivering the opinion, said: 

It is not denied that a valid statute may be passed to 
take effect upon the happening of some future event, 
certain or uncertain. But such a statute, when it comes 
from the hand of the legislature must be law in presenti 
to take effect in futuro. * * * The event or change 
of circumstances on which a law may be made to take 
effect must be such as in the judgment of the legisla- 
ture affects the question of the expediency of the law; an 
event on which the expediency of the law in the. judg- 
ment of the lawmakers depends. On this question of 
expediency the legislature must exercise its own judg- 
ment definitely and finally. * * * But in the present 
case no such event or change of circumstances affecting 
the expediency of the law was expected to happen. The 
wisdom or expediency of the free school law, abstractly 
considered, did not depend on a vote of the people. If 
it was unwise or inexpedient before that vote was taken, 
it was equally so afterwards. The event on which the act 
was made to take effect was nothing else than the vote 



JUDICIAL DECISIONS. 209 

of the people on the identical question which the con- 
stitution makes it the duty of the legislature itself to 
decide. * * * The government of this State is dem- 
ocratic, but it is a representative democracy, and in pass- 
ing general laws the people act only through their rep- 
resentatives in the legislature. 16 

Without doubt the position taken in such cases is per- 
fectly sound, for the people have specifically provided, in 
their written constitutions, the manner in which general 
State laws shall be passed, and, according to our theory 
of government, legislation of this kind can take place in 
no other way. It would certainly be revolutionary for 
the legislature to attempt to pass general laws, in any 
other manner than that provided by the written constitu- 
tion, and it would be equally revolutionary for the judi- 
ciary and the executive to enforce any legislative action 
of this kind. Here the unwritten constitution, which 
allowed the legislature to modify it at will, was abro- 
gated by act of the people and a written constitution, de- 
fining the powers and duties of all branches of govern- 
ment, erected in its stead. The same may be said of any 
attempt on the part of the people to legislate for them- 
selves directly till they had made provision for such acts 
by a constitutional amendment. All of the reasons ap- 
plied by the several courts to local option laws, in de- 
claring them unconstitutional because opposed to the 
principles of representative government and our funda- 
mental law, would be applicable here. The cases of this 
kind, however, have been so few as to warrant little dis- 
cussion except as a matter of discovering, in cases where 
no constitutional provision has been made for it, the 
theory of the referendum under our governmental plan. 

16 See, also, Mayor and counsel of city of Brunswick v. Fin- 
ney, 54 Ga., 317 (1875); State v. Hayes, 61 N. Y., 264 (1881); 
Bank of Chenango v. Brown, 26 New York, 467 (1863); Gould 
v. Town of Sterling, 23 New York, 456 (1861); State, ex rel., v. 
Wilcox, 45 Mo., 458. 
14 



210 THE GROWTH OF DEMOCRACY. 



CHAPTER X. 

POPULAR CO-OPERATION IN LEGISLATION AND 

ADMINISTRATION (2) UNDER WRITTEN 

CONSTITUTIONS. 

The development of constitutional provisions for pop- 
ular co-operation in acts of government seems to be 
somewhat intimately associated with the judicial con- 
tests growing out of their use. Nothing more forcibly 
illustrates the desire of our society for a settled and well- 
established order. The referendum had been resorted to 
by the people as a means of protecting themselves 
against the predatory activities of the public agents to 
whom were entrusted the exercise of sovereign power. 
This means of protection had been questioned and in 
some instances denied. The interests of society de- 
manded that it be protected both from oppressive acts of 
government and from the blight of uncertainty. It being 
advantageous to the public welfare that the referendum 
be retained as a part of our polity, the courts having de- 
nied this right or having caused doubt to exist relative 
to its constitutionality, the people sought the first op- 
portunity to incorporate the provisions desired in their 
constitutions. The courts having denied to the legisla- 
ture and to the people those rights which had been ex- 
ercised by them under the unwritten constitution, the 
people asserted these rights in that constituent capacity 
which the courts could not deny; they incorporated them 
in their written constitutions. 

This may seem an unwarranted inference; yet the fact 
that no provision was made in the written constitutions 
for the use of the referendum in local option laws till 



LEGISLATION, ETC., CONTINUED. 211 

1834, nearly ten years after question as to its validity had 
been raised — in Massachusetts; 1 that the next provision 
of this kind appeared in 1848— in Illinois, immediately 
after question was raised in that State as to the consti- 
tutionality of a local option law, and providing for the 
very subject of litigation; that in the same year like pro- 
vision was made in Wisconsin, a neighboring State; that 
no other constitutional provision for the referendum, in 
local matters, was made till 1850, prior to which time the 
validity of such laws had been questioned in nine differ- 
ent States ; these facts, together with the further fact that 
the provisions for referendum in the constitutions in- 
crease very much in the same proportion as the contro- 
versies arising out of referendal uses in matters of local 
legislation, argue very strongly for the correctness of 
this view. 

Two classes of provisions for referendum appear in 
the written constitutions: First, those 'providing for the 
referendum in general acts of government, i. e., acts af- 
fecting the State at large; and, second, those providing 
for referendum in acts of local government, i. e., meas- 
ures affecting political subdivisions of the State. We 
will consider them in the order stated. 

I. 

The first class of provisions were not, in all probabil- 
ity, seriously affected by the decisions of courts, for, as 
stated before, 2 it was quite generally conceded, that the 
adoption of written constitutions, providing a specific 
manner in which general laws should be passed and the 
agents for their enactment, abrogated the unwritten con- 
stitutional powers of the legislature to this extent, and 
required that general laws be passed in the manner and 
by the agents prescribed. Therefore, the growth of the 

1 See supra, p. 191. 2 Supra, p. 198. 



212 THE GROWTH OF DEMOCRACY. 

class of provisions may be attributed to the necessity 
arising out of political and social conditions. 

The first constitutional provision for referendum, of a 
general character, appears in the Georgia constitution of 
1798 (Art. I, Sec. 23). The subject-matter is that of 
State boundaries. The provision is as follows: 

And this convention doth further declare and assert 
that all the territory within the present temporary line, 
and within the limits aforesaid, is now, of right, the prop- 
erty of the free citizens of the State and held by them in 
sovereignty, inalienable but by their consent. 

This is followed by certain provisos. Another provi- 
sion on the same subject appears in the constitution of 
West Virginia — constitution of 1872, Art. VI, Sec. 11 — 
which recites that "additional territory may be admitted 
into and may become a part of this State, with the con- 
sent of the legislature and a majority of the qualified 
voters of the State voting on the question," etc., etc. 

In New York, at the time of the adoption of the con- 
stitution of 1846, the question of extending the right of 
suffrage to negroes was referred to the people, 3 and like 
provision was made in Michigan constitution of 1850. 4 
Referendal provisions relative to suffrage also appear in 
the constitutions of Wisconsin 5 (1848), Kansas 6 (1858), 
Colorado 7 (1876), South Dakota 8 (1889), Washington 9 
(1889), and North Dakota 10 (1895). 

But questions of boundary, territorial extent of a State 
and suffrage are constitutional in their nature rather 



3 Journal of Convention, Vol. IV, p. 463. 

4 Mich., Cons. 1850, Sched., 30. 

5 Wis. Cons. 1848, III, 1. 

6 Kans. Con., 1858, Sched., 12. 

7 Colo. Cons., 1776, VII, 2. 

8 S. Dak. Cons., 1889, VII, 2. 

9 Wash. Cons., 1889, Sched.. 8. 

10 N. Dak. Cons., 1895. 



LEGISLATION, ETC., CONTINUED. 213. 

than subjects of ordinary legislation. The establishment 
of a State involves two things, viz.: An organized po- 
litical people, and a clearly defined territory over which 
their sovereignty extends. The question of suffrage 
pertains to the former — a definition of the political peo- 
ple. The question of boundaries pertains to the latter, 
the definition of territorial jurisdiction. Both are es- 
sential. Political organization and territorial limits be- 
ing essential parts of the constitution, all questions re- 
garding suffrage, change in boundaries, sessions and an- 
nexations should have the same sanctions, theoretically, 
as other portions of the constitution. Eliminating these, 
therefore, we find no provisions for the referendum in 
ordinary legislation prior to 1842, at which time the 
people of Rhode Island incorporated in their constitu- 
tion the following: 

The General Assembly shall have no power hereafter, 
without the express consent of the people, to incur State 
debts to an amount exceeding fifty thousand dollars, ex- 
cept in time of war, or in case of insurrection or inva- 
sion; nor shall they in any case without such consent 
pledge the faith of the State for the payment of the obli- 
gations of others. 

In 1843 11 Michigan amended her constitution requir- 
ing: 

Every law authorizing the borrowing of money or the 
issuing of State stocks, whereby a debt shall be created 
on the credit of the State, shall specify the object for 
which the money shall be appropriated; and that every 
such law shall embrace no more than one such object, 
which shall be simply and specifically stated, and that no 
such law shall take effect until it shall be submitted to 
the people at the next general election and be approved 
by a majority of the votes cast for and against it at such 
election, etc. 



11 Mich. Am., 1843, to Cons., 1835. 



214 THE GROWTH OF DEMOCRACY. 

New Jersey, in her constitution of 1844, 12 made provi- 
sion that: 

The legislature shall not, in any manner, create any 
debt or debts, liability or liabilities of the State, which 
shall, singly or in the aggregate, with any previous debts 
or liabilities, at any time exceed one hundred thousand 
dollars, except for purposes of war or to repel invasion 
or to suppress insurrection, unless the same shall be au- 
thorized by a law for some single object or work to be 
distinctly specified therein, which law shall provide the 
ways and means, exclusive of loans, to pay the interest 
of such debt or liability as it falls due, and also to pay 
and discharge the principal of such debt or liability with- 
in thirty-five years from the time of the contracting there- 
of, and shall be irrepealable until such debt or liability 
and the interest thereon are fully paid and discharged, 
and no such law shall take effect until it shall at a general 
election have been submitted to the people and have 
received the sanction of a majority of all the votes cast 
for and against it at such election, etc. 

These provisions for the employment of the referendum 
were clearly the outgrowth of the financial excesses and 
abuses of previous legislatures. They were the forerun- 
ners of the many provisions in later constitutions for a 
popular vote in matters of State debts and liabilities. 
New York 13 and Iowa, 14 in 1846; Illinois, 15 in 1848; 
California, 16 in 1849; Kentucky, 17 in 1850; Kansas, 18 
in 1859; Nebraska, 19 in 1866; North Carolina 20 and Ar- 



12 New Jersey Cons., 1844, IV, 6. 

« N. Y. Cons., 1846, VII, i, 12. 

" la. Cons., 1846, VII, 5; Cons. 1857, VII, 5. 

10 111. Cons., 1848, III, 37. 

la Cal. Cons., 1849, VIII. 

17 Ky. Cons., 1850, II, 36, also Cons. 1891, 51-2 

18 Kans. Cons., 1859, X, 16. 

1 9 Neb. Cons., 1866, II, 32. 

2C N. C. Cons., 1868, V, 5. also Cons. 1876, V, 4. 



LEGISLATION, ETC., CONTINUED. 215 

kansas, 21 in 1868; Missouri, 22 in 1875; Colorado, 23 in 
1876; Louisiana, 24 in 1879; Idaho, 25 Montana, 26 Wash- 
ington, 27 Wyoming, 213 in 1889, and South Carolina, 29 in 
1895, made similar provisions for a compulsory refer- 
endum in measures involving the use of State credit. 

The next class of general legislation in which the ref- 
erendal device was employed was that providing for the 
location of the seats of State government. The first 
State to adopt its use was Texas — Cons. 1845, Art. Ill, 
Sec. 35. Texas was a new State, and was also a very 
large State. Many of its inhabitants were from those 
sections of the country where speculation in public lands 
had been rife and in which the location of public build- 
ings, State and county seats, had played a leading part. 
Connivance of officials with certain speculators and 
spoilsmen led the political people to withdraw from the 
officer his power and to reserve to themselves the right 
of determining the location of State institutions. The 
section of the constitution above referred to reads as 
follows: 

In order to settle permanently the seat of government, 
an election shall be holden throughout the State at the 
usual places of holding elections, on the first Monday in 
March, one thousand and eight hundred fifty, which 
shall be conducted according to law; at which time the 
people shall vote for such place as they may see proper 
for the seat of government. The returns of said elec- 
tion to. be transmitted to the governor by the first Mon- 
day in June; if either place voted for shall have a ma- 
jority of the whole number of votes cast, then the same 
shall be the permanent seat of government until the year 



21 Ark. Cons., 1868, 10, 6, also Cons. 1874. 

22 Missouri Cons., 1875, IV, 44. 

23 Colo. Cons., 1876, XI, 5. -' Wash. Cons., 1889, VIII. 

24 La. Cons., 1879. 2S Wyo. Cons., 1889, XVI, 12. 
23 Idaho Cons., 1889, VIII, 1. 2fl S. C. Cons., 189S, 10. 

26 Mont. Cons., 1889, XIII, 2. 



216 THE GROWTH OF DEMOCRACY. 

one thousand eight hundred and seventy, unless the 
State shall sooner be divided. But in case neither place 
voted for shall have a majority out of the whole number 
of votes given in, then the governor shall issue his proc- 
lamation for an election to be holden in the same man- 
ner, on the first Monday in October, one thousand 
eight hundred and fifty, between the two places having 
the highest number of votes at the first election. 30 

Oregon, in 1857, provided that: 

The Legislative Assembly shall not have power to es- 
tablish a permanent seat of government for this State; 
but at the first regular session after the adoption of this 
constitution the Legislative Assembly shall provide by 
law for the submission to the electors of this State, at 
the next general election thereafter, the matter of the 
selection of a place for a permanent seat of government; 
and no place shall ever be the seat of government under 
such law which shall not receive a majority of all the 
votes cast in the matter of such election. 

The other States following the example of Texas were: 
Minnesota, 31 in 1857; Kansas, 32 in 1858 and 1859 ; 33 Flor- 
ida, 34 in 1868; Colorado, 35 in 1876; Georgia, 36 in 1877; 
Oregon, 37 in 1880; Idaho, 38 Montana, 39 South Dakota 40 
and Washington, 41 in 1889; Mississippi, 42 in 1890. 

Banks and banking have been among the most fre- 
quent subjects of legislation in which the referendum has 
been employed. In this, Iowa took the initiative. Sec- 
tion 15 of Article III of the constitution adopted in the 
year 1846 has the following: 

30 Similar provisions are found in the Texas constitutions of 
1866 (III, 33) and 1868 (III, 37)- 

31 Minn. Cons., 1857, XV, 1. 37 Ore. Cons., 1880, XX, 1. 

32 Kans. Cons., 1858, sched., 38 Idaho Cons., 1889, X, 2. 
II. 39 Mont. Cons., 1889, X, 2. 

33 Kans. Cons., 1859, XV, 8. 40 S. Dak. Cons., 1889, XX, 1. 

34 Fla. Cons., 1868, III. 41 Wash. Cons., 1889. 

35 Colo. Cons., 1876, VIII, 2. 4i Miss. Cons., 1890. 
30 Ga. Cons., 1877. 



LEGISLATION, ETC., CONTINUED. 217 

No act of the General Assembly authorizing or cre- 
ating corporations or associations with banking powers, 
nor amendments thereto, shall take effect, or in any man- 
ner be in force, until the same shall have been submitted 
separately to the people, at a general or special election 
as provided by law, to be held not less than three months 
after the passage of the act, and shall have been ap- 
prised by a majority of all the electors voting for and 
against it at such election. 43 

In 1848 Illinois 44 followed the example of Iowa in al- 
most exact terms. 45 The constitution of Wisconsin, 
adopted the same year, has the following: 

The legislature may submit to the voters at any gen- 
eral election the question of ''bank or no bank;" and if 
at any such election a number of votes equal to a ma- 
jority of all the votes cast at such election on that subject 
shall be in favor of banks, then the legislature shall have 
power to grant bank charters, or to pass a general bank- 
ing law; with such restrictions and under such regula- 
tions as they may deem expedient and proper for the 
security of the bill holders: Provided, that no such 
grant or law shall have any force or effect until the same 
shall have been submitted to a vote of the electors of the 
State at some general election, and been approved by a 
majority of the votes cast on that subject at such elec- 
tion. 

In Michigan the provision took a still more general 
form. Section 2 of Article XV of the constitution of 
1850 provided: 

No banking law or law for banking purposes, or 
amendments thereto, shall have effect until the same 

4S The Cons, of Iowa, 1857, VIII, 5, made the same pro- 
vision except that it required the general or special election to 
be held "not more than three months hence." 

44 111. Cons., 1848, X, 5. 

45 The language is identical except that "nor amendments 
thereto" is dropped after "banking powers." The 111. Cons., 
1870 (XI, s) adds after "banking powers" "whether of issue, 
deposit, or discount, nor amendments thereto." 



218 THE GROWTH OF DEMOCRACY. 

shall, after its passage, be submitted to a vote of the 
electors of the State, at a general election, and be ap- 
proved by a majority of the votes cast thereon at such 
election. 46 

The provision of the Ohio constitution of 185 1 (Art. 
VIII, Sec. 5) followed that of Michigan. The Kansas 
constitution of 1857 has the following clause. 47 

The legislature may incorporate one bank of discount 
and issue, with not more than two branches: Provided, 
That the act incorporating the said bank and branches 
thereof shall not take effect till it shall be submitted to 
the people on the general election next succeeding the 
passage of the same, and shall have beeen approved by 
a majority of the electors voting at such election. 

The provision of the Kansas constitution of 1859 48 fol- 
lowed that just quoted. The provisions of the consti- 
tution of Kansas, 1858, 49 followed that of Michigan, and 
those of the Missouri constitution, 1875, 50 followed that 
of Illinois. The Federal banking acts, doing away with 
the "issue" function of State banks brought this class of 
constitutional provisions to a close. 

The subject of the sale of school lands was the next 
to receive sufficient attention to enter into constitu- 
tional provisions for referendum. The Kansas constitu- 
tion of 1859 51 declares: "The school lands shall not be 
sold unless such sale be authorized by the people at a 
general election." This, however, is the only constitu- 
tion in which such provision appears. 

Legislation relating to State aid to railways was first 
brought within the constitutional provisions for refer- 
endum in i860 by Minnesota, as an amendment to the 



46 This provision was amended 1862. 

47 Kan. Cons., 1857, XII. 5. 49 Kans. Cons., 1858, XVII, 9. 

48 Kans. Cons., 1859, XIII, B0 Mo. Cons., 1875, XII, 26. 
8. 51 Kans. Cons., 1859, VI, 5. 



LEGISLATION, ETC., CONTINUED. 219 

constitution of 1857. The amendment is to the effect 
that: 

No law levying a tax, or making other provision for 
the payment of interest or principal of the bonds denom- 
inated "Minnesota State Railway bonds" shall take ef- 
fect or be in force until such law shall have been sub- 
mitted to a vote of the people of the State and adopted 
by a majority of the electors of the State voting in the 
same. 

This amendment grew out of the fact that in 1858 a 
previous amendment had been adopted authorizing the 
issue of $5,000,000 of bonds to aid in the construction of 
certain railroads. The companies having received the 
desired aid, failed to meet the conditions imposed on 
them, leaving the people to pay a large indebtedness 
under conditions very different from those which were 
made the basis of the grant. The amendment of i860 
was passed for the purpose of preventing the legislature 
from settling these claims in a manner unfavorable to the 
people. After the adoption of the amendment several 
laws were passed by the legislature providing for an ad- 
justment of the claims, 52 some of which were unsatis- 
factory to the people and others to the bondholders. 
Finally, the courts having declared the amendment un- 
constitutional on the ground that it contravened the con- 
stitution of the United States, 53 the affair was adjusted 
by the legislature without the consent of the people. 

In Missouri, in 1865, at the time of submitting the 
constitution, the question of an ordinance which pro- 
vided for the payment of certain railway bonds was re- 



52 The first attempt was in 1866, the second in 1867, the third 
in 1870 and the fourth in 1871. 

53 The court took the ground that the amendment was an 
impairment of the obligation of contracts. See State v. Young, 
29 Minn., 474. 



220 THE GROWTH OF DEMOCRACY. 

ferred to the people by act of the constitutional conven- 
tion. 54 

In Illinois, 55 West Virginia, 56 Nebraska, 57 Ala- 
bama, 58 Colorado 59 and Texas 60 provisions were made 
that the legislatures of these States should not grant any 
right to construct street railways in cities, towns or vil- 
lages or upon public highways without the consent of 
the electors or local authorities. 61 

As to the subject of taxation, the referendum was first 
employed under the Illinois constitution of 1848. By 
Article III, Section 37, it was provided that upon the 
submission of the law for the increase of the State in- 
debtedness over $50,000 that "provision shall be made 
at the time for the payment of the interest annually as 
it shall accrue, by a tax levied for the purpose, or from 
other sources of revenue; which law providing for the 
payment of such interest by such tax shall be irrepealable 
until such debt be paid; and provided, further: That 
the law levying the tax shall be submitted to the people 
with the law authorizing debt." This was the first con- 
stitutional provision of the kind adopted in the States. 

Colorado — constitution 1876, X, 11 — made the fol- 
lowing provision: 

The rate of taxation on property for the State pur- 
poses shall never exceed six mills * * * and when- 
ever the taxable property within the State shall amount 
to $100,000,000 the rate shall not exceed four mills; 
* * * and whenever the taxable property within the 

n4 Poore, Charters and Constitutions, II, p. 1162, Sec. 7. 
55 111. Cons., 1870, XI, 4. 
66 West Va. Cons., 1872, XI, 5. 
07 Neb. Cons., 1875, XII, 2. 
ss Ala. Cons., 1875, XIV, 24. 
59 Colo. Cons., 1876, XV, 11. 
co Texas Cons., 1876, X, 7. 

01 Provisions for reference of law to the authority of the 
locality is not strictly within the meaning of the referendum. 



LEGISLATION, ETC., CONTINUED. 221 

State shall amount to $300,000,000 the rate shall never 
thereafter exceed two mills, * * * unless the prop- 
osition to increase such rate, * * * be first sub- 
mitted to a vote of such of the qualified electors of the 
State as in the year next preceding such election shall 
have paid a property tax assessed to them within the 
State, and a majority of those voting thereon shall vote 
in favor thereof, in such manner as provided by law. 

Very similar provisions are found in the constitutions 
of Idaho 62 and Montana. 63 

Illinois, in the constitution of 1870, also placed a ref- 
erendal restriction on State expenditures. Section 33, Ar- 
ticle IV, reads as follows: 

The General Assembly shall not appropriate out of the 
State treasury or expend on account of the new capital 
grounds, and construction, completing, and furnishing 
of the state-house, a sum exceeding in the aggregate 
$3,500,000, inclusive of appropriations heretofore made, 
without first submitting the proposition for an addi- 
tional expenditure to the legal voters of the State, at a 
general election; nor unless a majority of all the votes 
cast at such election shall be for the proposed addi- 
tional expenditures. 

Subjects of general educational interest have also 
claimed a place in constitutional provisions of this sort — 
e. g., Texas, 64 in 1876, submitted the matter of the loca- 
tion of the State university to a vote of the people and 
by separate clause 65 made like provision for the location 
of a State school for colored persons. 

The following subjects, therefore, are found to be in 
the first class of constitutional provisions for popular 
co-operation in acts of government, viz.: The annexa- 
tion of territory and State boundaries, the extension of 
the suffrage, the incurring of State indebtedness, the 



G2 Ida. Cons., 1889, VII, 90. Gi Tex. Cons., 1876, VII, 10. 

63 Mont. Cons., 1889, XII, 9. 63 Tex. Cons., 1876, VII, 14. 



222 THE GROWTH OF DEMOCRACY. 

lending of the credit of the State, the location of seats of 
government and State institutions, laws for the incor- 
poration of banking institutions, the sale of school lands, 
State aid to railways, provisions for education, taxation 
and appropriations for State purposes. We now pass to 
a consideration of the second class of constitutional pro- 
visions, viz., those providing for popular co-operation 
in acts of local government. 

II. 

The second class of constitutional provisions above re- 
ferred to — i. e., those providing for the popular co-opera- 
tion in acts of local government— comprehends a much 
wider range of subjects than the first. Within this class 
falls nearly every subject that has come within the range 
of local option laws. Historically, Tennessee seems to 
be entitled to the honor of pioneer. The people of that 
State, in 1834, adopting a new constitution, reserved to 
themselves the right to co-operate in acts of govern- 
ment involving the change of county lines. Art. X, 
Sec. 4, of said constitution is in part as follows: 

No part of a county shall be taken to form a new 
county, or a part thereof, without the consent of a ma- 
jority of the qualified voters in such part taken off. 

Following the example of Tennessee, the people of 
Illinois, in their constitution of 1848, 00 made provision 
that: 

No county shall be divided, or have any part stricken 
therefrom, without submitting the question to a vote 
of the people of the county, nor unless a majority of all 
legal voters of the county voting on the question shall 
vote for the same. 

A few months later the people of Wisconsin 07 pre- 
scribed in the constitution: 



111. Cons., 1848, VII, 2. 67 wig. Cons., 1848, VIII, 7. 



LEGISLATION, ETC., CONTINUED. 223 

No county with an area of nine hundred square miles 
or less shallbe divided, or have any part stricken there- 
from without submitting the question to a vote of the 
people of the county. 

In 1867 68 the constitution of Maryland was so changed 
that no new -county could be organized "without the 
consent of the majority of the legal voters residing with- 
in the limits proposed to be formed into said new coun- 
ty," and whenever it was proposed to form a new county 
"out of portions of two or more counties" the consent of 
a majority of the legal voters of such part of each of said 
counties, respectively, was required; nor could "the lines 
of any county be changed" without the consent of a 
majority of the legal voters. The new constitutions of 
Tennessee, 1870; 60 Michigan, 1850; Ohio, 1851; Illinois, 
1870, 70 and the constitutions of Indiana, 185 1; Penn- 
sylvania, 1857, and Arkansas, 71 1874; Maryland, 1864; 
West Virginia, 1872; Missouri, 1875 ; 72 Nebraska, 1875 ; 73 
Colorado, 1876; 74 Texas, 1876; 75 Louisiana, 1879; Idaho, 
1889 ; 76 North Dakota, 1889 ; 77 South Dakota, 1889 ; 78 
Kentucky, 1891; 79 and South Carolina, 1895, 80 contain 
provisions of similar import. 

Michigan restricted the powers of its legislature by 
providing in its constitution: 

No organized county shall ever be reduced by the 
organization of a new county to less than sixteen town- 

68 Md. Cons., 1867, XIII, 1. 

69 Term., 1870, X, 4, required two-thirds of qualified voters. 

70 111., 1870, X, 2; Mich., 1850, X, 2; Ohio, II, 30. 

71 Arkansas, 1874, XIII, 2; Ind., 1851, sched., 15; Pa., X, Am., 
1857- 

72 Mo., 1875, IX, 3-4; Md., 1864, X, 1; W. Va., 1872, IX, 8. 

73 Neb., 1875, X, 2. 77 N. Dak., 1889, 162. 

74 Colo., 1876, XIV, 3. 78 So. Dak., 1889, IX. 

75 Texas, 1876, IX, 1, 3rd. 79 Ky., 1891. 

76 Idaho, 1889, XVIII; La., so So. Car., 1895, VII, 2. 
1879, 251. 



224 THE GROWTH OF DEMOCRACY. 

ships, as surveyed by the United States, unless in pur- 
suance of a law a majority of the electors residing in 
each county to be affected shall so decide. 81 

In Ohio R2 the people were made an integral part of 
the government for these purposes, the constitution pro- 
viding: 

All laws creating new counties, changing county lines, 
or removing county seats shall, before taking effect, be 
submitted to the electors of the several counties to be 
affected thereby, at the next general election after the 
passage thereof, and be adopted by a majority of all the 
electors voting at said election in each of the said coun- 
ties. 83 

The constitution of Georgia, 1868, 84 provided: 

Nor shall any county be abolished except by a vote 
of two-thirds of each house and after the qualified voters 
shall, at an election held for that purpose, so decide. 85 

And Michigan, 1850 : 86 

The legislature may organize any city into a separate ' 
county when it has obtained a population of twenty thou- 
sand inhabitants without reference to geographical ex- 
tent when a majority of the electors of a county in which 
such city may be situated, voting thereon, shall be in 
favor of a separate organization. 87 

Another form of provision for referendum in chang- 
ing county boundaries is that found in the constitution 
of South Carolina, 1895 : 88 

81 Mich., 1850, X, 2. 

82 Ohio, 1851, II, 30. 

83 See, also, S. Dak., 1889, IX, 1; S. Car., 1895, VII, 7. 

84 Ga., 1868, III, 5. 

85 See, also, Cons. La., 1879, 251. 

86 Mich., 1850, X, 2. 

87 For similar provisions see Minn., 1857, XI, 2. 

88 Const. S. Car., 1895, VII, 10. 



LEGISLATION, ETC., CONTINUED. 225 

The general assembly may provide for the consoli- 
dation of two or more existing counties if a majority of 
the qualified voters of such counties voting at an elec- 
tion held for that purpose shall vote separately therefor, 
but such election shall not be held oftener than once 
in four years in the same counties. 

The people of Illinois in their constitution of 1848 
made two other provisions for popular co-operation in 
acts of local government, the one having to do with 
the removal of county seats and the other with the adop- 
tion of the township system. Sec. 5 of Art. VII is 
as follows: 

No county seat shall be removed until the point to 
which it is purposed to be removed shall be fixed by 
law and a majority of the voters of the county shall 
have voted in favor of its removal to such point. 

Wisconsin 89 the same year adopted like provision, 
modifying it, however, so that "a majority of the voters 
of the county voting on the question" could affect the 
change. In 185 1 Ohio made it necessary to submit laws 
providing for the removal of county seats to popular 
vote, 90 which was followed by Minnesota in 1857. 91 
Kansas in 1859 92 incorporated into its constitution the 
provision that "no county seat shall "be changed with- 
out the consent of a majority of the electors of the 
county," and Tennessee, 1870, 93 that "where an old county 
is reduced for the purpose of forming a new one the 
seat of justice in said old county shall not be removed 
without the concurrence of two-thirds of both branches 
of the legislature, nor shall the seat of justice of any 
county be removed without the concurrence of a two- 
thirds majority of the qualified voters of the county." 



89 Const. Wis., 1848, XIII, 8. 92 Cons. Kan., 1859, IX, 1. 

90 See page 224. 93 Cons. Tenn., 1870, X, 4. 

91 Cons. Minn., 1857, XI, 1. 

15 



226 THE GROWTH OF DEMOCRACY. 

Illinois, the same year, 94 enlarged upon the provi- 
sions of 1848 by requiring three-fifths of the voters of 
the county for removal of county seat, and, further, "that 
no person shall vote on such question who has not 
resided in the county six months and in the election 
precinct ninety days next preceding such election," and 
the question could not be submitted oftener than once 
in ten years, "but when an attempt is made to remove 
a county seat to a point nearer to the center of the 
county, then a majority vote only shall be necessary." 
In 1874 the constitution of Arkansas 95 required that "no 
county seat shall be established or changed without the 
consent of a majority of the qualified voters of the county 
to be affected * * * nor until the place at which it 
is proposed to establish or change such county seat shall 
be fully designated." In 1875 tne constitution of Mis- 
souri 96 took away from the legislature the power to 
remove county seats and required that their removal 
should be only by general law; and that no county seat 
should be removed "unless two-thirds of the qualified 
voters of the county voting on the proposition at a gen- 
eral election vote therefor." The other constitutions 
that have required the use of the referendum in ques- 
tions of removal or establishments of county, seats are 
Texas 97 1876, Georgia 98 1877, Louisiana 99 1879, Cali- 
fornia 1 1880, Idaho 2 1889, South Dakota 3 1889, Wash- 
ington 4 1889, Montana 5 1889, Mississippi 1890, Ken- 
tucky 7 1891, South Carolina 8 1895. It would therefore 
appear that about half of the States have come to em- 



94 Cons. 111., 1870, X, 4. 2 Cons. Ida., 1889, XVIII 

93 Cons. Ark., 1874, XIII, 3. 3 Cons. S. Dak., 1889, IX, 2. 

90 Cons. Mo., 1815, IX, 2. 4 Cons. Wash., 1889, XI, 2. 

97 Cons. Texas, 1876, IX, 2. 5 Cons. Mont, 1889, XVI, 2. 

9 * Cons. Ga., 1877, XI, 4. c Cons. Miss., 1890, 269. 

99 Cons. La., 1879, Art. 250. 7 Cons. Ky., 1891, 64. 

1 Cons. Cal., 1880, XI, 2. * Cons. S. C, 1895, VII, 8. 



LEGISLATION, ETC., CONTINUED., 227 

ploy this method of determining such questions, and 
this half comprises nearly all of the States in which 
changes are liable to be made in the course of the de- 
velopment of the country. In these latter constitutions 
it is quite common to find a two-thirds vote required. 

The optional provision of the constitution of Illi- 
nois, adopted in 1848, that "the general assembly shall 
provide, by general law, for a township organization 
under which any county may organize whenever a ma- 
jority of the legal voters of such county voting at any 
general election shall so determine," was continued in 
the constitution of 1870 9 of that State and was followed 
by Nebraska 1875, 10 Missouri 1875, 11 California 1880, 12 
Washington 1889, 13 and North Dakota 1889. 14 But the 
constitution of Illinois 1870, 15 Missouri 16 and Nebraska, 17 
1875, and North Dakota, 1889, 18 further provided that if 
any county shall have adopted "township organization" 
the question of continuing the same may be submitted to 
a vote of the electors of such county at a general election 
and if a majority of all votes cast upon that question 
shall be against township organization it shall cease in 
said county and all the laws in force in counties not hav- 
ing township organization shall immediately take effect 
there. 

In 1850 the people of Virginia, in order to determine 
on the most satisfactory principle of appointing repre- 
sentatives and settle the basis of representation, resorted 
to the following unique device: 

It shall be the duty of the general assembly in the 
year one thousand eight hundred sixty-five, and in every 
tenth year thereafter, in case it can agree upon a prin- 

9 Cons. 111., 1870, X, 5. 1 4 Cons. N. Dak., 1889, 170. 

10 Cons. Neb., 1875, X, 5. 15 Cons. 111., 1870, X, 5. 

11 Cons. Mo., 1875, IX, 8. 16 Cons. Mo., 1875, IX, 9. 

12 Cons. Cal., 1880, XI, 4. " Cons. Neb:, 1875, X, 5. 

1 3 Cons. Wash., 1889, XI, 4. 1S Cons. N. Dak., 1889, 171. 



228 THE GROWTH OF DEMOCRACY. 

ciple of representation, to reapportion representation in 
the senate and house of delegates in accordance there- 
with; and in the event of the general assembly, at the 
first or any subsequent period of reapportionment, shall 
fail to agree upon a principle of representation and to 
reapportion representation therewith, each house shall 
separately propose a scheme of representation contain- 
ing a principle or rule for the house of delegates in con- 
nection with a principle or rule for the senate, * * * 
and the governor shall, as soon thereafter as may be, by 
proclamation, make known the proposition of the respec- 
tive houses, and require the voters of the commonwealth 
to assemble at such time as he shall appoint, at their lawful 
places of voting, and decide by their votes between the 
propositions thus presented. In the event the general 
assembly shall fail, in the year one thousand eight hun- 
dred and sixty-five, or in any tenth year thereafter, to 
make such reapportionment or certificate, the governor 
shall, immediately after the adjournment of the general 
assembly, by proclamation, require the voters of the 
commonwealth to assemble, at such time as he shall ap- 
point, at the lawful places of voting to declare by their 
votes: — 

First, whether representation in the senate and house 
of delegates shall be apportioned on the "suffrage basis;" 
that is, according to the number of votes in the several 
counties, cities, towns and senatorial districts of the com- 
monwealth ; 

Or, second, whether representation in both houses shall 
be apportioned on the "mixed basis;" that is, according 
to the number of white inhabitants contained and the 
amount of all State taxes paid in the several counties, 
cities and towns of the commonwealth ; * * * 

Or, third, whether representation shall be apportioned 
in the senate on taxation ; that is, according to the amount 
of all State taxes paid in the several counties, cities and 
towns of the commonwealth, * * * and in the 
house of delegates on the "suffrage basis" as aforesaid; 

Or, fourth," whether representation shall be appor- 
tioned in the senate on the "mixed basis" as aforesaid, 
and in the house of delegates on the "suffrage basis" as 



LEGISLATION, ETC., CONTINUED. 229 

aforesaid; and each voter shall cast his vote in favor of 
one of the said schemes of apportionment, and no more. 18 

As the civil war intercepted any legislative action on 
the choice of one of the principles set forth in the consti- 
tution, this provision remains only as evidence of a de- 
sire on the part of the people to have a voice in the 
matter of legislative apportionments. 

The next subject of action on the part of constitu- 
tional conventions in making provision for the use of 
the referendum in matters of local government was that 
of local taxation. In this Maryland holds the place of 
pioneer. By its constitution of 1864, Art. VIII, Sec. 5, it 
provided that: 

The general assembly shall levy at each regular ses- 
sion after the adoption of the constitution an annual tax 
of not less than ten cents on each one hundred dollars of 
taxable property throughout the State for the support of 
the free public schools; * * * Provided, That the 
general assembly shall not levy any additional school 
tax upon particular counties, unless such county express 
by popular vote its desire for such tax. 

The example of Maryland has been followed by a 
number of States. These States providing for the refer- 
endum on laws to increase the rate of taxation for school 
purposes are: Missouri, 1875 ; 19 Texas, 1876, 20 and 
Florida, 1885 . 21 Those making like provision for city 
purposes are: Missouri, 1875 ; 22 Louisiana, 1779, 23 
Those providing for referendum to authorize an in- 
creased tax rate in counties: Texas, 1868 ; 24 Illinois, 
1870; 25 Nebraska, 1875 ; 26 West Virginia, 1872; 27 Mis- 



18 Cons. Va., 1850, IV, 5. - 3 La. Cons., 1879, 209. 

19 Cons. Mo., 1875, X, 11. 24 Cons. Texas, 1868, XII, 32 

20 Cons. Texas, 1876, XI, 10. 2S Cons., 111., 1870, IX, 8. 

21 Cons. Fla., 1885, XII, 10. 26 Cons. Neb., 1875, IX, 5. 

22 Cons. Mo., 1875, X, 11. 27 Cons. W. Va., 1872, X, 7. 



230 THE GROWTH OF DEMOCRACY. 

souri, 1875, - 8 and Louisiana, 1879. 29 The provision 
adopted by Missouri is most interesting, as by it the 
people have specifically defined the rate which may be 
imposed by their officers or agents in the several local 
departments of government and then bound themselves 
not to increase it except for certain specific purposes, and 
in these by their assent only. The provision is as fol- 
lows: 

Taxes for county, city, town and school purposes may 
be levied on all subjects and objects of taxation, but the 
valuation of property therefor shall not exceed the valu- 
ation of the same property in such town, city or school 
district for State and county purposes. For county pur- 
poses, the annual rate on property in counties having six 
million dollars, or less, shall not, in the aggregate, exceed 
fifty cents on the hundred dollars' valuation; in counties 
having six million dollars and under ten million dollars, 
said rate shall not exceed forty cents on the hundred dol- 
lars' valuation ; in counties having ten million dollars 
and under thirty million dollars, said rate shall not ex- 
ceed fifty cents on the hundred dollars' valuation; and in 
counties having thirty millions dollars, or more, said rate 
shall not exceed thirty-five cents on the hundred dollars' 
valuation. For city and town purposes, the annual rate 
on the property in cities and towns having thirty thou- 
sand inhabitants or more, shall not, in the aggregate, 
exceed one hundred cents on the hundred dollars' valua- 
tion ; in cities and towns having less than thirty thousand 
and over ten thousand inhabitants, said rate shall not ex- 
ceed sixty cents on the hundred dollars' valuation; in 
cities and towns having less than ten thousand and more 
than one thousand inhabitants said rate shall not exceed 
fifty cents on the hundred dollars' valuation; and in 
towns having one thousand inhabitants or less, said rate 
shall not exceed twenty-five cents on the hundred dollars' 
valuation. For school purposes in districts, the annual 
rate on property shall not exceed forty cents on the hun- 
dred dollars' valuation: Provided, The aforesaid annual 
rates for school purposes may be increased in districts 

28 Cons. Mo., 1875, X, 11. 29 La. Cons., 1879, 209. 



LEGISLATION, ETC., CONTINUED. 231 

formed of cities and towns to an amount not to exceed 
one dollar on the hundred dollars' valuation, and in other 
districts to an amount not to exceed sixty-five cents on 
the hundred dollars' valuation, on the condition that a 
majority of the voters who are taxpayers, voting at an 
election to decide the question, vote for said increase. 
For the purpose of erecting public buildings in counties, 
cities or school districts, the rates of taxation herein lim- 
ited may be increased when the rate of such increase and 
the purpose for which it is intended shall have been sub- 
mitted to a vote of the people, and two-thirds of the quali- 
fied voters of such county, city or school district voting at- 
such election shall vote therefor. The rate herein al- 
lowed to each county shall be ascertained by the amount 
of taxable property therein, according to the last assess- 
ment for State and county purposes, and the rate allowed 
to each city and town by the number of inhabitants ac- 
cording to the last census taken under the authority of 
the State or the United States; said restrictions, as to 
rates, shall apply to taxes of every kind and description, 
whether general or special, except taxes to pay valid in- 
debtedness now existing, or bonds which may be issued in 
renewal of such indebtedness. 

This provision, as may be seen, is most general in 
scope and specific in its application, covering county, 
city and school district assessments. The provision of 
the constitution of Texas, 1876, 30 relates only to cities 
and towns which have been erected into separate and in- 
dependent school districts, requiring a two-thirds vote of 
the taxpayers to levy a tax for school purposes. That of 
the constitution of Florida, 1885, 31 is more general. It 
recites that the legislature may provide: 

For the levying and collection of a district school tax, 
for the exclusive use of public free schools within the dis- 
trict whenever a majority of the qualified electors thereof 
that pay a tax on real or personal property shall vote in 
favor of such lew. 



30 Cons. Texas, 1876, XI, 10. 31 Cons. Fla., 1885, XII, 10. 



232 THE GROWTH OF DEMOCRACY. 

As to those providing for the use of the referendum in 
strictly county levies, the constitution of Texas, 1868, 32 
required: 

A vote of two-thirds of the qualified voters of the re- 
spective counties to assess and provide for the collection 
of a tax upon the taxable property, to aid in the con- 
struction of internal improvements. 

The Illinois constitution, 1870, 33 prescribed that: 

County authorities shall never assess taxes, the aggre- 
gates of which shall exceed seventy-five cents per one 
hundred dollars' valuation, except for the payment of in- 
debtedness existing at the adoption of this constitution, 
unless authorized by a vote of the people of the county. 

West Virginia, 1872 : 34 

County authorities shall never asses taxes in any one 
year the aggregate of which shall exceed ninety-five 
cents per one hundred dollars' valuation, except for the 
support of free schools, payment of indebtedness existing 
at the time of the adoption of this constitution, and for 
the payment of any indebtedness with the interest there- 
on, created under the succeeding section, 35 unless such 
assessment, with all questions involving the increase of 
such aggregate, shall have been submitted to the vote of 
the people of the county, and have received three-fifths of 
all the votes cast for and against it. 

Nebraska, i875, 3G employed the provision above set 
forth from the Illinois constitution, while Louisiana, 
1879, 37 provided: 

That for the purpose of erecting and constructing 
public buildings, bridges and works of public improve- 



32 Cons. Texas, i868,XII, 32. vided for incurring indebtedness 

33 Cons. 111., 1870, IX, 8. by the referendum. 

34 Cons. W. Va., 1872, X, 7. "f 6 Cons. Neb., 1875, IX, 5. 

35 The succeeding section pro- 37 Cons. La., 1879, Sec. 209. 



LEGISLATION, ETC., CONTINUED. 233 

ment in parishes and municipalities, the rate of taxation 
* * * may be increased when the rate of such in- 
crease and the purpose for which it is intended shall have 
been submitted to a vote of property taxpayers of such 
parish or municipality entitled to a vote under the election 
laws of the State, and a majority of the same voting at 
such election shall have voted therefor. 

Such are the constitutional provisions for the use of the 
referendum in school districts, counties and cities when 
an increase in the rate of taxation is desired. The con- 
stitution of South Carolina contains a unique provision 
that: 

Cities and towns may exempt from taxation, by gen- 
eral or special ordinance, except for school purposes, 
manufactures established within their limits for five suc- 
cessive years from the time of the establishment of such 
manufactures; Provided, That such ordinance shall be 
first ratified by a majority of such qualified electors of 
such city or town as shall vote at an election held for that 
purpose. 



38 



The fifth subject of referendum in local matters is that 
of "Debt and Stockholding," and the constitution of Mis- 
souri, 39 1865, is the first that comes under our notice. 
Sec. 14 of Art. XI is as follows: 

The general assembly shall not authorize any county, 
city or town to become a stockholder in, or loan its 
credit to, any company, association or corporation un- 
less two-thirds of the* qualified voters of such county, city 
or town, at a regular or special election to be held therein, 
shall assent thereto. 40 



■' s Cons, of S. Car., 1895, VIII, 8. 

39 Cons, of Mo., 1865, XI, 14. 

40 Those States enacting similar provisions are North Caro- 
lina, 1868, VII. 7: Mississippi, 1868. XII, 14; Arkansas, 1868, 
X, 6; Tennessee, 1870, II, 29; (Tennessee, however, required a 
vote of three-fourths of the legal voters.) 



234 THE GROWTH OF DEMOCRACY. 

In 1867 Maryland" placed a restriction on the mayor 
and council of the city of Baltimore, providing that: 

From and after the adoption of this constitution no 
debt (except as herein excepted) shall be created by the 
mayor and city council of Baltimore; nor shall the credit 
of the mayor and city council of Baltimore be given or 
loaned to, or in aid of, any individual, association, or 
corporation ; nor shall the mayor and city council of Balti- 
more have the power to involve the city of Baltimore in 
the construction of works of internal improvements, nor 
in granting any aid thereto which shall involve the faith 
and credit of the city, nor make any appropriation there- 
for, unless such debt or credit be authorized by an act of 
the General Assembly of Maryland, and by an ordinance 
of the mayor and city council of Baltimore, submitted to 
the legal voters of the city of Baltimore, at such time and 
place as may be fixed by said ordinance, and approved by 
a majority of the votes cast at such time and place. 

This measure was special in its nature, applying to 
Baltimore only. 

In 1872 West Virginia adopted a general provision in 
form different from that quoted from the Missouri con- 
stitution, 1865 ; 42 it was followed by the constitutions of 
Mississippi, North Carolina and Arkansas, 1868, and 
Tennessee, 1870. 43 This provision reads as follows: 

No county, city, school district or municipal corpora- 
tion, except in cases where such corporations have al- 
ready authorized their bonds to be issued, shall hereafter 
be allowed to become indebted, in any manner, or for any 
purpose, to an amount, including existing indebtedness, 
in the aggregate exceeding five per centum on the value 
of the taxable property therein, to be ascertained by the 
last assessment for State and county taxes, previous to 
the incurring of such indebtedness; nor without, at the 
same time, providing for the collection of a direct annual 



41 Cons. Md., 1867, XI, 7. 42 See page 233, n. 39. 

43 See page 225. 



LEGISLATION, ETC., CONTINUED. 235 

tax sufficient to pay, annually, the interest on such debt 
and the principal thereof within not exceeding thirty- 
four years : Provided, That no debt shall be contracted 
under this section, unless all questions connected with 
the same shall have been first submitted to a vote of the 
people, and have received three-fifths of all the votes cast 
for and against the same. 44 

The Pennsylvania constitution of 1873 45 has the fol- 
lowing: 

The debt of any county, city, borough, township, 
school district or other municipality or other incorpo- 
rated districts, except as herein provided, shall never ex- 
ceed seven per centum upon the assessed value of the 
taxable property therein, nor shall any such municipality 
or district incur any new debt or increase its indebted- 
ness to an amount exceeding two per centum upon such 
assessed valuation of property, without the assent of the 
electors thereof at a public election, in such manner as 
shall be provided by law. 

Following this, in 1889, 40 Washington made similar 
provisions, the maximum rate of indebtedness, without 
popular vote, being fixed at one and one-half per cent, 
instead of two, the vote necessary to incur a debt of 
greater amount being three-fifths of all within the district 
incurring the same, and the maximum rate with the con- 
sent of the voters not to exceed: 

Five percentum on the value of taxable property there- 
in, to be ascertained by the last assessment. * * * 
Providing, further, that any city or town with such assent 
may be allowed to become indebted to a larger amount, 
but not exceeding five percentum additional, for the sup- 
plying such city or town with water, artificial light and 
sewers when the works for supplying such water, light 



44 See, also, Cons. Md., 1875, X, 12, and S. Car., 1895, VIII, 
7, for same provisions. 
4r > Cons. Pa., 1873, IX, 8. 
46 Wash. Cons., 1889, VIII, 6. 



236 THE GROWTH OF DEMOCRACY. 

and sewers shall be occupied and controlled by the mu- 
nicipality. 47 

Nebraska, in its constitution adopted in the year 
1875, 4S made provision that: 

No city, county, town, precinct, municipality, or other 
subdivisions of the State shall ever make donations to any 
railroad or other work of internal improvement, unless a 
proposition so to do shall have been first submitted to the 
qualified voters thereof at an election by authority of law: 
Provided, That such donations of a county with the dona- 
tions of such subdivisions in the aggregate shall not ex- 
ceed ten per cent of the assessed valuation of such 
county; Provided further, That any city or county may, 
by a two-thirds vote, increase such indebtedness five per 
cent in addition to such ten per cent. * * * 

As to county debts the constitution of Colorado, 1876,' 19 
provides: 

No county shall contract any debt by loan in any form, 
except for the purpose of erecting necessary buildings, 
making or repairing public roads and bridges; and such 
indebtedness contracted in any one year shall not exceed 
the rates upon taxable property in such county following, 
to-wit: Counties in which the assessed valuation of 
property shall exceed five millions of dollars, one dollar 
and fifty cents on each thousand dollars thereof; counties 
in which such valuation shall be less than five millions of 
dollars, three dollars on each thousand dollars thereof; 
and the aggregate amount of indebtedness of any county, 
for all purposes, exclusive of debts contracted before the 
adoption of this constitution, shall not at any time ex- 
ceed twice the amount above herein limited, unless when, 
in manner provided by law, the question of incurring such 
debt shall, at a general election, be submitted to such of 
the qualified electors of such county as in the year last 



47 Georgia (Cons. 1877, VII, 7) also made provision quite 
similar to Pennsylvania quoted above, except the maximum rate 
allowed without referendum is one and one-half per cent. 

4<8 Neb. Cons., 1875, XII, 2. 4y Colo. Cons., 1876, XI, 6. 



LEGISLATION, ETC., CONTINUED, 



237 



preceding such election shall have paid a tax upon prop- 
erty assessed to them in such county and a majority of 
those voting thereon shall vote in favor of incurring the 
debt, etc. 

As to school districts: 50 

No debt by loan in any form shall be contracted by 
any school district for the purpose of erecting and fur- 
nishing school buildings or purchasing grounds, unless 
the proposition to create such debt shall first be sub- 
mitted to such qualified electors of the district as shall 
have paid a school tax thereon in the year next preceding 
such election, and a majority of those voting thereon shall 
vote in favor of incurring such debt. 

As to cities and towns: 51 

No city or town shall contract any debt by loan, in any 
form, except by means of an ordinance, which shall be 
irrepealable until the indebtedness therein provided for 
shall have been fully paid or discharged, specifying the 
purposes to which the funds to be raised shall be applied, 
and providing for the levy of a tax, not exceeding twelve 
mills on each dollar of valuation of taxable property 
within such city or town, sufficient to pay the annual in- 
terest and extinguish the principal of such debt within 
fifteen, but not less than ten, years from the creation 
thereof; * * * but no such debt shall be created un- 
less the question incurring the same shall, at a regular 
election for councilmen, aldermen, or officers of such 
city or town, be submitted to a vote of such qualified 
electors thereof as shall, in the year next preceding, have 
paid a property tax therein, and a majority of those vot- 
ing on the question, by ballot deposited in a separate bal- 
lot box, shall vote in favor of creating such debt; but the 
aggregate amount of debt so created, together with the 
debt existing at the time of such election, shall not at any 
time exceed three per cent of the valuation. * * * 
Debts contracted for supplying water to such city or 
town are excepted from the operation of this section. 



so Cons. Colo., 1876, XI, 7. si Cons. Colo., 1876, XI, 8. 



238 THE GROWTH OF DEMOCRACY. 

Texas, in her constitution of 1876, 52 limited the powers 
of government as to incurring general indebtedness, but 
made special provision for incurring indebtedness for 
building levees in districts subject to overflow, by ref- 
erendum. 

Idaho 53 provided as follows: 

No county, city, town, township, board of education or 
school district, or other subdivision of the State, shall 
incur any indebtedness or liability in any manner or for 
any purpose exceeding in that year the income and rev- 
enue provided for it for such year, without the consent of 
two-thirds of the qualified electors thereof, voting at an 
election to be held for that purpose, nor unless, before or 
at the time of incurring such indebtedness, provision 
shall be made for the collection of an annual tax sufficient 
to pay interest on such indebtedness as it falls due, and 
also to constitute a sinking fund, etc. 

Similar provision was made in California in 1892, by 
amendment. 

In 1895 South Carolina, besides following the example 
of West Virginia, 54 with slight changes, 55 also made pro- 
vision 56 that: 

Cities and towns may acquire by construction or pur- 
chase, and may operate, water works, systems and plants 
for furnishing light, and may furnish water and lights to 
individuals, firms and private corporations for reasonable 
compensation; Provided, That no such construction or 
purchase shall be made except upon a majority vote of 
the electors in said cities or towns who are qualified to 
vote on the bonded indebtedness of said cities and 
towns. 57 

Other questions have been made subject for referendal 



52 Cons. Texas, 1876, XI, 7. 55 Cons. S. Car., 1895, VIII, 7. 

53 Cons. Idaho, 1889, X, 3. 5G Cons. S. Car., 1895, VIII, 5. 
• r ' 4 Cons. W. Va., 1872, X, 7, " Cons. S. Car., 1895, II, U- 

see page 234. 



LEGISLATION, ETC., CONTINUED. 239 

provisions in the constitution, such as changing the lines 
of judicial districts, deciding whether judges shall be 
elected or appointed, whether proportional representation 
shall be adopted, whether new courts shall be formed, 
question as to the number of aldermen and justices of 
the peace to be chosen in a district or ward, etc. , Thus, 
in 1868, the Texas constitution 38 provided as follows: 

The State shall be divided into convenient judicial dis- 
tricts, for each of which one judge shall be appointed by 
the governor, by and with the advice and consent of the 
senate, for a term of eight years. * * * Provided, 
That at the first general election after the 4th of July, 
1876, the question shall be put to the people whether the 
mode of election of judges of the Supreme and District 
courts shall now be returned to. 

And in 1869 New York, 59 following the example of 
Texas, made provision that: 

The legislature shall provide for submitting to the 
electors of the State, at the general election of the year 
eighteen hundred and seventy-three two questions to be 
voted upon on separate ballots, as follows: First, "Shall 
the offices of chief judge and associate judge of the Court 
of Appeals, and of justice of the Supreme Court, be here- 
after filled by appointment?" If a majority of the voters 
upon the question shall be in the affirmative, the said of- 
ficers shall not thereafter be elected, but as vacancies oc- 
cur, they shall be filled by appointment by the governor, 
by and with the advice of the senate; or if the senate be 
not in session, by the governor; but in such case he shall 
nominate to the senate when next convened, and such ap- 
pointment by the governor alone shall expire at the end 
of that session. Second, "Shall the offices of judges 
mentioned in sections twelve and fifteen of article six of 
the constitution [judges of the Superior Court of New 
York city, the Court of Common Pleas of New York city, 
the Superior Court of Buffalo, the City Court of Brook- 

58 Cons. Texas, 1868, V, 6. 

59 Am. Cons. N. Y., 1869, Sec. 15. 



240 THE GROWTH OF DEMOCRACY. 

lyn and the County Courts throughout the State] be 
hereafter filled by appointment?" If a majority of the 
votes upon the question shall be in the affirmative, and 
said officers shall not thereafter be elective, but as va- 
cancies occur they shall be filled in the manner in this 
section above provided. 

In 1872 West Virginia 60 made provision for the use of 
the referendum in the reform and modification of county 
courts already established and for the establishment of 
new tribunals, as follows: 

The legislature shall, upon the application of any 
county, reform, modify, or alter the county court estab- 
lished by this constitution in such county, and in lieu 
thereof, with the assent of a majority of the voters of said 
county voting at any election held for that purpose, 
create another, court or other tribunals, as well for judi- 
cial as for police and fiscal purposes, either separate or 
combined, which shall conform to the wishes of the 
county making the application, but with the same powers 
and jurisdiction herein conferred upon county court, and 
with compensation to be made from the county treasury. 

West Virginia, in the same constitution, Art. VI, Sec. 
50, also provided for the submission of the question of 
proportional representation, as follows: 

The legislature may provide for submitting to a vote 
of the people at the general election to be held in 1876, or 
at any general election thereafter, a plan or scheme of 
proportional representation in the senate of this State; 
and if a majority of the votes cast at such election be in 
favor of the plan submitted to them, the legislature shall, 
at its session succeeding such election, rearrange the sen- 
atorial districts in accordance with the plan so approved 
by the people. 

Pennsylvania, in its last constitution, 1873, 61 adopted a 
provision for referendum as to the number of justices of 

60 Cons. W. Va„ 1872, VIII, 34. 

61 Pa. Cons., 1873, V, 11. 



LEGISLATION, ETC., CONTINUED. 841 

the peace and aldermen to be elected in the several wards, 
districts, etc., the provision being: 

No township, ward, district, or borough shall elect 
more than two justices of the peace or aldermen without 
the consent of a majority of the qualified electors within 
such township, ward, or borough. 

Summarizing the constitutional provisions for popular 
co-operation in acts of local government, the subjects are 
as follows: Change of county lines, the division of 
counties, the annexation of territory to counties, the or- 
ganization of new counties, the abolition of old ones, the 
organization of cities into separate counties, the estab- 
lishment and removal of county seats, optional township 
or county organizations, the abandonment of township 
organization, the basis of apportionment of representa- 
tives, county taxes, city taxes, school taxes, the exemp- 
tion of certain properties from taxation, local debt, stock 
holding, loaning credit, etc., the acquiring of water 
works and plants for light, changing the lines of judicial 
districts, the formation of new courts, the manner of 
filling judicial offices, proportional representation, and 
the number of justices of the peace and aldermen to be 
elected. 



16 



242 THE GROWTH OF DEMOCRACY. 



CHAPTER XL 

CAUSES OF THE GROWTH OF DEMOCRACY, OR 

CONDITIONS WHICH HAVE MADE CHANGES 

IN OUR INSTITUTIONS NECESSARY. 

It has been postulated of all human activities that they 
are the result of fixed and definite laws; that, conditions 
remaining constant, these activities will continue the same 
indefinitely. Habit is held to be the result of continued 
activity of a particular kind. The individual, having first 
chosen to act in a certain manner under certain condi- 
tions, this manner of action appearing to be most ad- 
vantageous, he continues to act in like manner under like 
conditions. But with each repetition of the act both 
mind and body acquire such increased facility of action 
in this particular direction that it will require a con- 
stantly greater effort to act in any other. In other words, 
by the law of habit, other things being equal, repetition of 
an act is of constantly increasing advantage to the in- 
dividual. 1 

The same has been postulated of society, and, it being 
true of the individual on the principle that what is true of 



1 Not only was habit the conservative force employed and 
relied on in establishing and maintaining institutions under 
ancient military rule, an order of things in which personal 
status was the prevailing idea, but also under the modern in- 
dustrial regime, where the governing principle was shifted from 
status to that of economic efficiency. It was found that by 
repetition a man became more efficient. The success of co- 
operative industry is attributable to this fact. Why adopt the 
principle of division of labor? Why differentiate industry? 
The greater facility of action gained by repetition, the utility 
of habit explains. The same may be said of our complex sys- 
tem of government. Wherever there is specialization the eco- 
nomic basis is found in this principle. 



CAUSES OF GROWTH- OF DEMOCRACY. 243 

each of the parts is true of all, it follows. In social ac- 
tivities, however, — i. e., the activities of the individual co- 
operating with others, — this fact becomes much intensi- 
fied for the reason that it requires far greater effort for a 
number of men to agree on a plan of co-operation than 
for one man to make a decision for himself. Therefore, 
the habits or customs of men acting in co-operation are 
the more firmly fixed. The social inertia becomes great; 
there is an increasing tendency for the individual mem- 
ber of society to continue to act according to custom in- 
stead of varying his action with every new condition. 
This being true, the stability of our institutions needs no 
other explanation. 

But what of the element of change? If change in the 
individual comes from change in environment, this also 
would follow in the social organism. New conditions 
may cause the individual to suffer to such an extent that 
he may choose to act in a different manner than he has 
acted before. If he acts alone and in contravention of the 
established order, he becomes a law-breaker or a crim- 
inal, and he may be required to suffer still greater hard- 
ship in the interest of society. If, however, he acts with 
a sufficient number of others they may set aside the cus- 
tom or law and adopt a new rule of action which is 
deemed by them more advantageous. Basing the evolu- 
tion of society on the law of advantage, it is only when 
conditions are so altered as to make it of sufficient ad- 
vantage for a majority of the members of a political 
society to alter their customs and laws rather than con- 
tinue to act in the same manner that change will take 
place. What, then, were the altered conditions, what 
the new environment that dictated to Americans the ad- 
vantage to be obtained by change in their customs, laws 
and institutions? 

As shown in Chapter II, the first and most important 
fact that the colonists had to face was a new continent. 



244 THE GROWTH OF DEMOCRACY. 

Around them was a wilderness which offered neither ade- 
quate shelter nor easy means of sustenance — a continent 
untouched by the hand of civilized man, uninhabited, ex- 
cept by wild beasts and savages, having all of the pos- 
sibilities of wealth, but, at the outset, offering in return 
for toil and risk but a scanty livelihood. Their environ- 
ment was entirely changed and to have continued their 
former habits and customs would have meant certain ex- 
termination. To have insisted on the establishment here 
of the institutions and conventions of the old world 
would have made colonization impossible. Conforming 
themselves to conditions, modifying their institutions so 
as to adapt them to the welfare of this new society, the 
colonies grew in population and wealth; they extended 
their industry far to the north, the south, and the west; 
they made the resources of the western world a prize to 
their efforts. Change in institutions followed change in 
conditions. The experience of the colonists was a new 
school in which they learned to adapt themselves to en- 
vironment in such manner as would be of greatest ad- 
vantage. In all their establishments the general welfare 
was their central thought ; the principle both for sustain- 
ing the established order and for modifying it. 

As the struggle with nature for her fruits became more 
favorable to the colonists, the struggle of society for their 
enjoyment became more intense. Absolutism again 
reached out to secure the colonies within its grasp and 
make them subservient to arbitrary power. It was re- 
sisted. The whole power of the colonies was finally 
roused and asserted against such an assumption. They 
denied the fundamental maxim, "The King [the con- 
queror] is the source of all power." They respected not 
the precept, "The King can do no wrong." On the other 
hand, they conceived a notion "that all power is vested in 
and consequently derived from the people; that magis- 
trates are their trustees and servants;" and upon this no 



CAUSES OF GROWTH OF DEMOCRACY. £43 

tion, as a fundamental concept, without precedents ex- 
cept those evolved from their own experience, and with 
no light from the old world to guide them except certain 
beacons "which gave warning of the course to be shunned 
without pointing out that which ought to be pursued," 
they were left free to organize their government and 
adopt such a polity as they themselves, as a sovereign, 
people, might evolve. It was the story of the Dutch 
Republic, of the English revolution, over again, but un- 
der more favorable conditions. The effect of the war had 
been to unite the people in one purpose, one political 
idea. They were accustomed to self-government. 
Without the disturbing ideals of King, court or titled 
nobility, animated by a spirit of public equality, dis- 
carding the whole predatory polity of the past and rely- 
ing on their own experience in government for the bene- 
fit of the governed, they set about to build up a govern- 
mental system based on such principles as would guar- 
antee to themselves the liberties for which they had 
fought, preserve their sovereignty and make their gov- 
ernors their "trustees and servants" instead of their mas- 
ters — the most extraordinary task ever undertaken by a 
political people. 2 

But they arose to the occasion. In 1787 there met in 
Philadelphia a congress of nation-builders — men who 
were pre-eminent among a nation-building people. 

2 "It is hard to-day, even for Americans, to realize how 
enormous these difficulties were. The convention had not only 
to create de novo, on the most slender basis of pre-existing 
national institutions, a national government for a widely scat- 
tered people, but also in doing so they had to respect the fears 
and jealousies and apparently irreconcilable interests of thir- 
teen separate commonwealths, to all of whose governments it 
was necessary to leave a sphere of action wide enough to satisfy 
a deep-rooted local sentiment, yet not so wide as to imperil 
national unity." — Madison. 

"The establishment of a constitution, in time of profound 
peace, by the voluntary consent of a whole people is a prodigy 
to the completion of which I look forward with trembling 
anxiety." — Hamilton. 



246 THE GROWTH OF DEMOCRACY. 

Hardly one among them but had sat in some famous 
assembly, had signed some famous document, had filled 
some high place or had made himself conspicuous for 
learning, for scholarship or for signal services rendered 
in the cause of liberty. One had framed the Albany plan 
of union; some had been members of the Stamp-Act Con- 
gress of 1765; some had signed the Declaration of Rights 
in 1774; the names of others appear at the foot of the 
Declaration of Independence and at the foot of the Ar- 
ticles of Confederation ; two had been presidents of Con- 
gress, one had commanded the armies of the United 
States; another had been Superintendent of Finance; a 
third had repeatedly been sent on important missions to 
England and had long been minister to France. 3 

After five months of secret session, with the failures of 
the past before them and the dangers of the present 
around, inspired by patriotic impulses, in the spirit of mu- 
tual concession, these men evolved an imperial plan of 
government, the prime purpose of which was to protect 
the people against predation, and to promote their com- 
mon interest — a plan which has since served as a model 
to which the statescraft of the century has been working. 4 

But the institutional changes during the national period 
have been quite as numerous as those which took place 
during the colonial, the conditions giving rise to these 
modifications quite as varied. 

In the first place, the government being favorable to 
the material welfare of the people, the political conditions 
were present for greatest prosperity. There was a re- 
markable increase in population and wealth. America 
led the world in invention, and in industrial organization. 
There was a rapid development of whole empires of new 



3 MacMaster, With the Fathers, p. 112. 

4 "After all deductions it ranks above every other written 
constitution for the intrinsic excellence of its scheme, its adap- 
tation to the circumstances, the simplicity, brevity and pre- 
cision of its language, its judicious mixture of definiteness in 
principle and elasticity in details." — Bryce, p. 28. 



CAUSES OF GROWTH OF DEMOCRACY. 247 

resources in the West and South. Large fortunes were 
amassed. Corporate franchises and privileges granted 
for control of industrial forces became most valuable. 
The whole economic situation was recast. 

In the second place, political parties were found pre- 
requisite to the exercise of popular government. The 
establishment of a polity based on the popular will made 
necessary expressions of popular opinion in matters of 
public concern. The expression of popular opinion in- 
volved discussion and division among the people, and di- 
vision among the people created political parties. No 
sooner had the plan of government devised by the consti- 
tutional convention been submitted to the people than 
there was a division on the question of the advisability of 
its adoption. In this untried experiment which they 
were about to make many saw the seeds of anarchy, while 
others received it with suspicion because of its providing 
for a too rigid enforcement of Federal law. The plan 
called forth heated discussion on all sides. To one party 
a powerful Federal authority seemed essential, to the 
other a weak central and a powerful State government 
seemed best. This was the dividing line. The states- 
men divided; the people divided; the whole nation, with 
all the earnestness displayed in the prosecution of the 
Revolution, entered into the discussion, and the constitu- 
tion was finally established as the result. In the opera- 
tion of this new plan, on every occasion where the people 
took an active part, we find divisions made, not for or 
against the government but for or against change. This 
is the great dividing line between popular parties. The 
question is always before them : Shall the present order 
remain or shall it be modified so as better to conform to 
conditions present? For the purpose of making the gov- 
ernment responsive to popular will every facility is given 
to popular discussion and expression. No sooner is ex- ; 
pression made on one question than the popular atten- 



S48 THE GROWTH OF DEMOCRACY. 

tion is fixed on another. This is the very essence of life 
in a popular government. 

But the wealth of the country becoming great, re- 
sources being found on every hand, this seemed to whet 
the edge of desire, and multiply the inducement to preda- 
tion as well as to production. As the modern govern- 
ment is an evolutionary result of the conflict between the 
predatory and the industrial groups, acting through the 
centuries, so the modifications that have been made in 
our institutions subsequent to our national establish- 
ment may be attributed to the same kind of conflict. The 
political party being the means through which the gov- 
ernment was controlled, the predatory as well as the in- 
dustrial group sought to control the party. 

The control of parties and the subversion of the func- 
tions of government for personal ends were first made 
manifest in the States. The New York constitution was 
especially adapted to predatory political ends. In that 
State, by the constitution of 1777, a provision was made 
by which nearly all of the officers of the State, from the 
main general officers to the justices of the peace, were 
appointed by a committee of one senator from each dis- 
trict committee. This power was at first exercised very 
largely in the interest of good government, but during 
the bitter party struggles of the first decade the power of 
appointment was found so useful to a perpetuation of the 
party in power that it soon came to be used for private 
and party ends instead. In this State there was built up 
a system of "spoils" and plunder such as the world has 
seldom seen and from which the State has not yet re- 
covered. One has but to read the early history of that 
State to be impressed with the utter rottenness of its gov- 
ernment. Not only the administrative and judicial of- 
ficers were made tools in the interest of the party leaders 
but also the legislative, being elected or subsequently 
corrupted by them, became a most shameless body of 



CAUSES OF GROWTH OF DEMOCRACY. 249 

public despoilers. The functions of government were 
prevented. The powers of the State were used in the in- 
terests of the ruling class. Not only the public properties 
were placed at the disposal of partisans, but private con- 
cerns were dominated and monopolies granted on a 
purely party basis. Charters of corporations and fran- 
chises, being granted by the legislature, were sought 
for and obtained by friends of the administration and 
denied to all others. An example of this is found in the 
chartering of the Manhattan Bank (1798-99). At this 
time the Bank of New York was in the hands of the Fed- 
eralists. The Manhattan Bank was chartered in the in- 
terests of the Republicans, and the government being in 
the hands of the opposition, it became necessary to em- 
ploy strategy to accomplish their end. 

The scheme of chartering this company was formed 
and mainly executed by Col. [Aaron] x Burr. The bill 
was so drawn as to enable Col. Burr and his Republican 
friends to get control of a majority .of the stock, and of 
course of the funds of the company. It is an admitted 
fact that a large majority of the legislature, at the time 
they granted this charter, did not know that it contained 
a charter of banking powers. 5 * * * 

The next bank chartered, which partook of a party 
character, was the New York State Bank, at Albany. 
The applicants for the charter of this institution alleged 
that the Bank of Albany was owned by Federalists, and 
that its power was wielded in such manner as to be op- 
pressive to those business men who belonged to the re- 
publican party. * * * They were open and frank in 
declaring the object of their application and the reasons 
on which it was founded. But, as proof of the monop- 
olizing and greedy spirit of men, a part of whose busi- 
ness it was to drive bank charters through the legislature, 
truth compels me to state that this republican company 
had connected with their application a most gigantic 
scheme of speculation, if not of peculation. They peti- 



5 Hammond, I, 129. 



250 THE GROWTH OF DEMOCRACY. 

tioned the legislature that, in the same act by which the 
bank was to be chartered, an exclusive grant might be 
made to them, or a lease might be given them, of the 
salt springs of the State, for a long time, say, sixty 
years. * * * At that time the value of the salt 
springs was not generally known in the State, and the 
public were equally ignorant of the expense of manufac- 
turing salt, as is evident from its offer made to put the 
maximum price at five shillings for the same quality salt 
which, it has since been ascertained, can be manufac- 
tured for six cents. 6 Some of the western members, who 
foresaw the exorbitant monopoly which a lease of the 
salt works for a long term of years would confer on the 
company, made an outcry about it, and the company 
prudently consented to strike out that provision of the 
bill. After this clause was stricken out, one would have 
supposed that the company would have been sure of suc- 
cess by resting upon the merits of the bill. But the com- 
pany, before their petition was presented, had agreed on 
a dividend of stock among themselves and reserved a 
surplus to be distributed among the members of the legis- 
lature. It appears from the affidavit of Luther Rich, a 
member from the county of Otsego, and several other 
affidavits, that assurances were given that those members 
who voted for the bill should have stock, with a further 
assurance that the stock would be above par. This was 
the commencement of that corrupt practice. 7 

The Bank of America (1812) had quite similar parent- 
age. Mr. David Thomas, an emissary of the promoters, 
had been appointed State treasurer by the legislature. 
The petitioners for the charter offered an extravagant 
bonus of $600,000, ten per cent of its capital, provided no 
other bank should be chartered by the State within 
twenty years. One million dollars was to be loaned to 
the State at 5 per cent interest, to be used in canal build- 
ing; one million was to be loaned to the farmers. This 
was offered as peace money. The managers employed a 



6 Id., 328. 7 Hammond, I, 329. 



CAUSES OF GROWTH OF DEMOCRACY. 251 

large number of agents, some of whom were members of 
the legislature itself. 8 

From the affidavits of Silas Holmes, Nathaniel Cobb, 
Bennett Bicknell, A. C. Comstock and Isaac Ogden, all 
members of the legislature, which will be found at large 
on the journals of the house of the assembly for 1812, it 
is evident that most shameless attempts were made to 
corrupt the members, and there is too much reason to 
believe, that in some instances, those attempts were suc- 
cessful. One is pained and sickened at the evidence 
these depositions afford to the degeneracy of human na- 
ture. John Martin, the preacher, whom I have men- 
tioned as the sub-agent of the bank, was convicted of at- 
tempting to bribe members of the legislature, contrary to 
the statute of 1806, and sentenced to confinement in the 
State prison. I have before alluded to the trial of Mr. 
South wick [one of the managers] for an attempt to bribe 
Mr. Speaker Sheldon, and I shall not take up the time of 
the reader by relating the particulars which were dis- 
closed in relation to the disgraceful transaction connected 
with the incorporation of this institution. 9 

In 1804, application having been made for a charter by 
The Merchants' Bank, a banking co-partnership in New 
York, not only was the charter denied, it being promoted 
largely by Federalists, but the legislature passed an act 
"restricting banking of all unincorporated companies un- 
der severe penalties, and declaring all notes or other se- 
curities for the payment of money to such unincorporated 



8 "Mr. Southwick and the other managers had early employed 
a great number of sub-agents, some of whom were officers of 
the house of assembly, but most of them were low, worthless 
fellows, who were to carry messages, and listen to what was 
said by the members, at their rooms and other places, and 
report at headquarters. Among other agents thus employed 
was an Irishman by the name of John Martin, who, from be- 
ing an itinerant preacher of the Gospel, had for a year or two 
devoted himself to the labor of making political converts. So 
numerous were these sub-agents that not only the doors of the 
two houses but the rooms of members, were besieged by them." 

9 Hammond, I, 335, et seq. 



252 THE GROWTH OF DEMOCRACY. 

companies absolutely void," 10 thus compelling all who 
would do a banking business to purchase the privilege 
from the legislature or become subservient to a party. 

In 1805 The Merchants' Bank bribed the legislature 
and in this manner procured their charter. 11 

In 1821 the people of the State, with a view to putting 
an end to such practices, changed their constitution in 
such manner as to render it necessary to obtain the as- 
sent of two-thirds of both houses in order to incorporate 
moneyed institutions. The only effect was to make 
bribery more bold, as is evidenced by the corruption 
practiced in the session of 1824-5 in procuring a charter 
for the Chemical Bank of New York, at present one the 
greatest monetary institutions of the world. 

The subversion of the functions of government: for the 
accomplishment of private and party ends was not con- 

lu Id. I, 219. 

11 "The Merchants Bank Company, at the session of 1805, 
made another great and vigorous effort to obtain a charter. 
It is not my intention here to detail the facts in relation to 
this application, further than to state that it was originally 
opposed by The American Citizen and Albany Register on 
party grounds, not because the chartering of this bank would 
be prejudicial to the public interest, but because the applicants 
were principally Federalists. Eventually, it is true, it appeared 
that the company did resort to vile and corrupt means to 
obtain their end. It was proved that several members of the 
legislature had been tampered with and Judge Purdy, who in- 
troduced in the senate the bill to incorporate the company, 
was compelled to resign his seat to avoid expulsion for bribery." 
— Hammond, I, p. 219. 

12 "During the November session, a complaint was made that 
the passage of the bill for chartering this bank had been pro- 
cured by corrupt means. An investigation was ordered, and 
a committee appointed with powers to send for persons and 
papers. The evidence given before the committee afforded 
a most disgusting picture of the depravity of the members of 
the legislature, and indeed, I might say, of the degradation 
of human nature itself. The attempt to corrupt, and in fact, 
corruption itself, was not confined to any one party. It ex- 
tended to individuals of all parties, and it is not improbable 
that the interests of members in these applications for monied 
incorporations had an effect on the political action of some 
of them." — Hammond, II, 178. 



CAUSES OF GROWTH OF DEMOCRACY. 253 

fined to bank charters. Other forms of corruption were 
quite as rife. The legislature of the State was regarded 
as the fit tool of all wishing to secure special privileges, 
franchises or properties through the favorable act of gov- 
ernment. After the establishment of independence the 
salaries and privileges of office were almost at once cast 
into the general pool of spoils and the political activities 
were prostituted to the most ignoble ends. 

The first governorship of the State after the adoption 
of the Federal constitution, was actually stolen. There 
had been a close contest between Jay and Clinton. 

As the votes in the eastern and southern counties were 
announced one by one the majority for Clinton dwindled 
till it stood one hundred and eight, with two strong Jay 
counties to be heard from. If Clinton was not to be de- 
feated, it was clear that an excuse must be found for 
throwing out the returns of some Federalist county, and, 
happily for the Republicans, an opportunity to do so ex- 
isted. The box from Tioga county, which contained a 
good majority for Jay, had been given by the sheriff to 
his deputy to carry to Albany. But the deputy fell sick 
by the way and sent the box on by a sub-deputy of his 
own appointment. This the Clintonians decided was il- 
legal and insisted that the vote of Tioga should not be 
counted. But even with Tioga left out, Jay would have 
a majority if Otsego was counted. Now, in Otsego, the 
sheriff had been appointed in February, 1791, to serve 
one year and just before the close of his first term had 
written to the council of appointment declining a second. 
One month after the end of his year a successor was ap- 
pointed, but had not qualified or acted when the election 
took place. In this state of things the old sheriff con- 
tinued to act, and, gathering up the ballots cast in the 
towns of his county, sent them by his deputy to Albany. 
Scarcely had he done this when he found that the bal- 
lots of one town had been left out, and these he sent 
wrapped up in paper. The Clintonians, availing them- 
selves of these irregularities, insisted that the returns of 
Otsego should not be counted. There was, in the first 
place, no sheriff. In the second place, the law required 



254 THE GROWTH OF DEMOCRACY. 

that the vote of every town should go in the box; but, 
as one had not gone into it, all the others must be lost. 
To this the Federalists made an elaborate answer, and 
supported their reasoning by the published opinion of 
eight of the most distinguished lawyers then practicing 
in New York city. The votes, after being received by 
the Secretary of State, were to be canvassed by a joint 
committee of six members of the senate and six members 
of the assembly. As some were Federalists and some 
were Republicans, they naturally differed as to receiving 
and canvassing the votes of Otsego and Tioga, and after 
many stormy sessions, agreed to refer the whole matter 
to a commission consisting of the United States Sena- 
tors from New York, Rufus King and Aaron Burr. 
Colonel Burr, knowing that the Clintonians had a ma- 
jority of the canvassing board, proposed to give no 
opinion. But when King declared that he should advise 
the canvassers to count the votes of Tioga and Otsego, 
Burr immediately advised them not to do so. Thus, left 
to themselves, the majority rejected the returns from the 
two counties as irregular and declared Clinton governor. 13 

That the spoils system of appointment was thoroughly 
established in New York during the first administration 
appears from the fact that, as each party in turn suc- 
ceeded in getting control of the council of appointments, 
this agency was used for strictly party ends. There were 
no elective officers except the Governor, Lieutenant Gov- 
ernor, State Treasurer, members of the legislature and 
Congressmen, and the numbers of appointments were 
many. This furnished a great inducement for the or- 
ganization of a machine, and the legislature, with the 
council, was subverted to this end. At the next elec- 
tion after the stealing of the governorship popular senti- 
, ment revolted against Clinton, and a legislature was 
elected which chose a council of their own faith. Then 
came a clash between the governor and council which 
resulted in a usurpation of powers on the part of the 



13 MacMaster, With the Fathers, p 77. 



CAUSES OF GROWTH OF DEMOCRACY, *oa 

council. The constitution provided that the governor 
shall "with the advice and consent of the said council ap- 
point all the said officers." 14 The council took the ground 
that they could nominate and by majority vote appoint 
the officers. The constitution having been construed 
in this way, the legislature came to be the source of the 
appointing power and completely overrode every wish of 
the Governor. 15 Finally, in 1801, the Republicans hav- 
ing gained complete control, they called a constitutional 
convention and so amended the constitution as to le- 
galize the former constitutional construction, and firmly 
established the spoils system of appointment in the 
State. 16 

The first election of United States Senators was in- 
volved in a bitter contest and, in the first presidential 
election, New York had no voice on account of a hope- 
less deadlock. 

As the party manager came to be more skilled in his 
profession the gerrymander was introduced. After the 
census of 1810, a new apportionment being necessary, 
the opportunity was seized to redistrict the State in such 
a manner as would have done honor to the most artful 
political trickster of to-day. A part of New York city 
was attached to Long Island and various other changes 
made to guarantee Republican success. ■> 

The political practices of New York have been detailed 
somewhat at length to the purpose of thoroughly dis- 
abusing the mind of the notion that our people, in co- 



14 Cons., 1777, Art. xxii. 

15 This not only happened with Clinton, but also with Jay- 
after he became Governor, his political opponents having ob- 
tained possession of the legislature. 

16 Thus, says MacMaster, was the spoils system introduced 
into New York, and from that day a change in the political 
complexion of the council of appointments was sure to be fol- 
lowed by a proscription of office-holders. 



256 THE GROWTH OF DEMOCRACY. 

lonial times and the early National period, were either 
more lofty in their ideals or more honorable in their 
practices than the men of to-day. That they were ani- 
mated by the same desires and were as thoroughly alive 
to every means of satisfying these desires appears not 
only by the history of New York, but also that of other 
colonies and States. "In Massachusetts," said Elbridge 
Gerry in the constitutional conventional of 1787, 1T "the 
worst men get into the legislature. Several members of 
that body have lately been convicted of infamous crimes. 
Men of indigence, ignorance and baseness spare no pains, 
however dirty, to carry their point against men who are 
superior to the artifices practiced." John Adams de- 
clared the elections of the State to be "unwarranted and 
indecent." That the legislature was used for the ends of 
private gain appears from the history of the first banking 
institutions and the other special privileges granted. 18 
It is to Massachusetts that we look for the introduction 
of that piece of the party machinery which has degraded 
our legislature and annoyed our people for nearly a cen- 
tury — the gerrymander. 

In Connecticut we find an oligarchy established early 
in its career, which by the law of 1801 restricting the bal- 
lot to certain official nominees was sustained till the con- 
stitutional convention in 1818. 

No State in the Union had been more thoroughly 
steeped in political spoils and the methods of the ward 
politician than Rhode Island prior to Dorr's rebellion. 

Pennsylvania, having within its border the largest city 
of the western world as a center for political organization, 
was thoroughly alive to the wiles of the campaigner. 
There the very act of adopting the National constitution 
was so shaded with corrupt practice as to rob it of all 



17 Journal of Cons. Conv., Chicago Ed., 1895, p. 115. 

18 See White, Money and Banking (Ed. 1896), pp. 318-319. 



CAUSES OF GROWTH OF DEMOCRACY. &5? 

claim to the primitive purity so often ascribed. The 
party opposing the adoption of the constitution at the 
time that the legislature had before it the calling of a 
ratifying convention attempted to defeat the act by ab- 
senting themselves and preventing a quorum. This they 
succeeded in doing until the enraged people "hearing 
that there was no quorum, went to the tavern, seized two 
of the absentees, dragged them to the State House, 
thrust them into the assembly chamber and blocked the 
doors." This completed a quorum and a convention was 
called. 19 But when the convention met, it appearing 
that the published reports would produce an effect op- 
posed to the success of one party, we find that one re- 
porter was bribed to print only such portion as was suited 
to their ends and the only other who had been allowed 
to take minutes of the proceedings was silenced by the 
purchase of his newspaper and notes. 20 

When motives of personal and party advantage en- 
tered so largely into the activities of State politics, it is 
not to be supposed that the National government would 
be free from domination of the same kind. As in the 
States, these practices appear in two classes, viz.: Those 
which were directed toward securing possession of the 
offices and salaries, and those which were directed toward 
some advantage to be gained through the exercise of the 
governmental functions. 

As to the first form of activity, it may be said that 
during the early National period there was no broad Na- 
tional organization devoted to the business of cam- 
paigning, as there is at the present time. The divisions 
among the people were on questions of policy arising 
under the constitution and the contests were most bitter. 
This political enthusiasm and intolerance and the desire 



19 McMaster, The Depravity of the Fathers. 

20 McMaster, The Depravity of the Fathers. 

17 



258 THE GROWTH OF DEMOCRACY. 

of each party to win led to extra legal party organiza- 
tions ; these party organizations were used as instruments 
by those seeking office for office's sake and the emolu- 
ments attached thereto. Air. Hammond, commenting 
on the political situation of 1789, says: 

After the adoption of the Federal constitution and the 
organization of a National government in pursuance of it, 
and the unanimous election of Gen. Washington for the 
first President, all disputes about the principles con- 
tained in the constitution seemed for a moment to sub- 
side. * * * But, notwithstanding the apparent gen- 
eral acquiescence, the parties which had been formed in 
the State of New York on' the question of adopting the 
United States constitution still continued to exist, al- 
though the cause for political association had ceased. 
The patronage of the National government through the 
influence of Gen. Hamilton, Mr. Jay and Mr. Schuyler, 
with the President, was generally bestowed upon men 
either personally or politically hostile to Gov. Clinton; 
and Gen. Hamilton, it will be found, always spoke of 
him unfavorably. Accordingly, John Jay was appointed 
Chief Justice of the United States, James Duane judge of 
the district of New York, Richard Hanson United States 
attorney and William S. Smith marshal, all active and 
zealous opponents of Gov. Clinton. Gen. Hamilton 
himself, who was at the head of the opposition to the 
Clinton party and was indeed the life and soul of the op- 
position, was made Secretary of the Treasury of the 
United States. Although these gentlemen were all of 
them eminently fitted for the offices to which they were 
respectively appointed, yet while such men as Melancton 
Smith, Judge Yates, etc., etc., were to be found among 
the friends of Gov. Clinton, it is not to be presumed that 
this exclusive selection of his opponents as the recipients 
of the bounty of the United States government would 
have been made in the entire absence of party views. 
There seems to me good reason for believing that the 
designs of Gen. Hamilton and his Federal friends in this 
State, who had the ear of Washington, was so to use the 
National patronage as to curtail the influence of Gov. 
Clinton and finally prostrate both him and his party. 



CAUSES OF GROWTH OF DEMOCRACY. 259 

In the other States a like condition existed. Mr. Gray- 
son writing to Patrick Henry, June 12, 1798, painted the 
situation at the National capitol as follows: 

There are an infinity of people here waiting for office. 
Many of them have gone home for want of money. It is 
certain a hundredth part cannot be gratified with places; 
of course ninety-nine will be dissatisfied. 21 

There were only a few so partisan .as to ascribe par- 
tisan or selfish motives to Gen. Washington; yet the 
party lines being sharply drawn in the States and the 
men on whom Washington leaned most strongly being 
Federalists, it so happened that by far the greater pro- 
portion of his appointees were of that party. 22 

John Adams came into power a confessed partisan. 
He had condemned Washington for his liberality toward 
the Republicans. He had lived in a State where those 
who were now allied with the Republicans had recently 
been in armed opposition to the government; he dis- 
trusted the Republicans and believed that a successful 
establishment and maintenance of National government 
depended not only on the directive heads of the depart- 
ments of government being Federalists, but also all those 
who were subordinate to them. Adams made the great 



21 Letters and Times of the Tylers, Vol. I, p. 168. Some- 
thing of the methods employed at the national capitals may 
also appear from the letters from John Adams to James Lovell, 
Sept. 1, 1789, an extract from which is as follows: "The place 
of collector would undoubtedly have been yours if the Presi- 
dent could have found any situation for your friend Lincoln. 
It was from no lukewarmness to you I am certain, but the 
public cause demanded that Lincoln should be supported, and 
this could not be done any other way. If after some time any 
other permanent place should be found for him, you, I pre- 
sume, will come in collector." 

22 Mr. Lyon Gardner Tyler, President of William and Mary 
College, assures us that the most important offices in Virginia 
and all of the states south of the Potomac were filled with 
Federalists to the exclusion of Republicans; See "Parties and 
Patronage," pp. 14, 15, 18. 



260 THE GROWTH OF DEMOCRACY. 

mistake of thinking that his own party was the only one 
to be trusted, of forgetting that over and above each 
party sat in judgment the people; that neither party could 
violate the popular sense of political propriety and polit- 
ical justice without having popular support withdrawn.- 3 
/\cting upon the hypothesis that Federalists were the 
only ones fit to rule, Adams studiously pursued the policy 
of filling all offices with men from that party. He made 
a number of removals for political reasons, but com- 
paratively few were necessary, as most of the offices were 
already filled with Federalists at the time he became 
President. There were, however, a large number of new 
appointments to be made. The foreign complications 
and the Indian disturbances demanded the reorganization 
of the military forces. New measures for revenue and 
administration called for an extension of the civil service. 
In making these he adhered strictly to party lines; even 
in the military he thought it unsafe to trust his oppo- 
nents. 24 In the same spirit of restraint of all acts and 



23 This is a mistake that has been made many times since. 
It was made by many of the Republican party immediately 
after the civil war. It is made today by many who suppose 
that the success of the opposition party would carry with it 
ruinous results in government. Not long since in discussing 
the question of whether we should declare war against Spain, 
one of the leading newspapers of the country asserted that, 
while war was to be deprecated, a halting policy would mean 
Democratic success, and war would be preferable to this. Such 
notions presume that the American people have not enough 
of "governing sense" to maintain good government; that, left 
to themselves, they would run to ruinous extremes; that they 
must have their attention diverted and in a measure be deceived 
in order that the best results may be accomplished. If this 
hypothesis is true then we should adopt a monarchical form of 
government at once. Experience has shown, however, that the 
people, when appealed to for a judgment, have always been 
conservative. We are constantly referring to them more of the 
questions demanding conservative action. 

24 This was a matter of serious complaint. No assumption 
more foreign to democratic government could be made than 
that those citizens who did not participate in the election of the 
President were so much to be doubted that they could not be 



CAUSES OF GROWTH OF DEMOCRACY. 261 

expressions on the part of those in opposition to the ad- 
ministration the alien and sedition laws were passed. It 
was a revolt against such assumptions and practices that 
caused the people to withdraw their support from the 
Federal party and turn it to the Republicans, led by 
Thomas Jefferson. The attitude of Mr. Adams may be 
best illustrated by his action after his defeat was made 
known. Wishing to establish Federal partisans in some 
branch of government where they could not be removed 
by his successors, a bill was passed in the last part of the 
last session of Congress under his administration creating 
thirty-six new Federal judgeships, which, under the con- 
stitution, would hold "during good behavior." Adams 
then proceeded to appoint Federalists to these offices. 
He also appointed John Marshall, then Secretary of 
State, Chief Justice of the Supreme Court. These ap- 
pointments having been made, it became necessary to 
have the commissions issued before the administration 
went out, and all forces were set to work, laboring till 
the hour of midnight when Jefferson's appointees walked 
into Marshall's office and demanded possession. 25 

Mr. Jefferson came into power at the head of a move- 
ment for reform. The alien and sedition laws had been 
most odious, as they put into the hands of the adminis- 
trative department of government the. power to throttle 
expression of opinion adverse to those in control and 
prevent the moulding of popular sentiment. The par- 
tisanism of Adams was bitterly denounced. The military 
and civil machine built up as a basis of patronage was 
decried as being fitted only to a monarchy. In response 



trusted in the service of the army. That this attitude was most 
offensive to the Republicans, see "Debate and Resolutions of 
Virginia and Kentucky," p. 205. 

25 In addition to these judicial positions, Adams also ap- 
pointed justices for the District of Columbia and a number of 
high federal officers other than those mentioned prior to Mr. 
Jefferson's induction into the office of President. 



2G2 THE GROWTH OF DEMOCRACY. 

to popular outcry the alien and sedition laws were re- 
pealed. As to civil service, Mr. Jefferson took the stand 
that those appointments made by Mr. Adams just prior 
to his quitting the office should be ignored. He pro- 
cured the repeal of the law creating the new Federal 
court under which the judges had been appointed. The 
army, consisting of more than 100,000 men, he disband- 
ed, leaving only four regiments of infantry, two of ar- 
tillery and two troops of light dragoons. The number 
of civil servants was reduced; about three-fourths of all 
in the service of the United States were dismissed. As 
to removals, several were made for cause of incom- 
petency,- but others were made for political reasons, as 
Mr. Jefferson held that, whereas, the offices had been 
filled entirely by Federalists in the former administration 
and there being very few of the Republican faith in the 
service, the officers and representatives of the people in 
the government should be proportional to the strength 
of the parties. 26 During the eight years of his reign 
only about one hundred removals were made, except 
those made by abolishing the office, and, though ap- 
pointments were made from his own partisans, the civil 
service had a large representation of Federalists. Dur- 
ing the administrations following only five removals were 
made by Madison in eight years and thirteen by Monroe 
during a like period. These were made largely for 
proper causes. 

After the war of 1812 the Federalist party became com- 
pletely emasculated. The people were almost a unit in 
support of the administration which had so bravely de- 
fended National and citizen rights. But during the war 
an increase in the military and civil service became nec- 
essary. The patronage of the government was conse- 
quently enlarged. This helped to harmonize the various 

- b This is the principle of proportional representation, though 
the method employed was not well adapted to securing it. 



CAUSES OF GROWTH OF DEMOCRACY. 263 

elements; an era of good feeling was established and all 
went well till 1824, when in the presidential election four 
candidates came out for President on practically the 
same ticket. The vote being divided so that none re- 
ceived a constitutional majority, the election was thrown 
into the House of Representatives. General Jackson, 
who had received a plurality of the votes of the electoral 
college, was defeated and Mr. John Quincy Adams was 
elected President. This fact incensed the defeated gen- 
eral and with all of the energy which he was accustomed 
to display on occasions of military activity he set about 
to organize an army of political conquest, to plan a cam- 
paign for victory in 1828. It was under the leadership 
of Jackson that the various partisan elements which had 
become so well established in the States were brought 
together into a National organization having for its ob- 
ject the success of its members in securing the benefits 
of office and official patronage. "Give me an army of 
thieves," said a commander of antiquity, "for the storm- 
ing of a city." Jackson recognized the force of appeal to 
the same motive in the organization of his campaign for 
the Presidency. Not the plunder of a city, but the sal- 
aries and patronage of office was what he held out to 
those who gathered to his standards. 

From this time we may date the organization and 
maintenance of National parties on a "spoils" basis — 
National predatory groups. Thereafter the work of 
"campaigning" became the subject of military genius in 
so far as the party managers were concerned and the 
"professional politician" was a person largely sought 
after as a means of successfully carrying on political ex- 
peditions. The official representative of the people be- 
came the choice and tool of the political "machine" — 
an organization formed for the purpose of bringing to- 
gether all of the widely distributed interests and parts 
into one organic whole in the interest of party success 



264 THE GROWTH OF DEMOCRACY. 

and the control of the offices and functions of govern- 
ment. Political patronage, spoils, became the desiderat- 
um. So powerful did these "machines" and rings be- 
come by reason of their wide and masterful organization 
that the people came to feel their own impotence beside. 

The investigation of defalcations by the twenty-fifth 
Congress, 1839, shows that assessments on officers for 
political purposes were common. The testimony of 
Swartout, a defaulting deputy collector at New York 
city, is to the effect that he was frequently called on to 
contribute to "political objects" while he was deputy 
collector; that the amounts called for were from $20 to 
$100; that the tax was pro rata from 1 to 6 per cent of 
the salary of office; that the assessments were made by a 
general committee of the Tammany society. If the of- 
ficer neglected or refused to contribute the amount as- 
sessed against him in this manner he was summarily 
dropped and his career came to an end. From all of the 
evidence at hand we may suppose that "political meth- 
ods" were well developed before the middle of the cen- 
tury. 

As to the second form of political activity, by which 
the general welfare is made subordinate to personal ends, 
viz., that directed toward some advantage to be gained 
through the exercise of functions of government, several 
circumstances had conspired to introduce this into the 
Federal government. We have already mentioned sim- 
ilar forms of activity in the States during the early Na- 
tional periods. It might be mentioned further that dur- 
ing the revolutionary war and immediately subsequent 
thereto many of the people had been enriched by act of 
government in confiscation of the lands and properties 
of British subjects and sympathizers. Another form of 
using the agencies of government to enrich certain mem- 
bers of society was the confiscation of property by the 
forced circulation of worthless paper money and by mak- 



'. CAUSES OF GROWTH OF DEMOCRACY. 265 

ing this legal tender for debts. The paper money craze 
had thoroughly debauched the public mind in several of 
the States. In Rhode Island, for example, the wildest 
excesses were indulged. 27 Speculation and gambling 
received encouragement, while honest effort and produc- 
tive labor was discouraged by such acts. The predatory 
instincts of the people were stimulated to a high pitch. 
With such training as this and with the practice of se- 
curing special advantages through legislation and other 
acts of government, well established in the States, it is to 
be expected that the National government would be 
sought as a means to the same end. 

An instance of this "kind is to be found in the specula- 
tions among the members of the first Congress by which 
they took advantage of enactments to strengthen the 
public credit, pay the debts of the Confederation, and as- 
sume the obligations of the several States to further 
their own pecuniary interests. Jefferson, speaking of 
this, says: 28 



27 There was a party in this State which held to the doctrine 
that the fiat of the government was all that was necessary to 
give value to a medium of exchange and make it pass current. 
The State credit was almost nil and the issue of paper made 
passed in the market for only a few cents on the dollar. In 
order to sustain this paper and enforce the doctrines of this the 
dominant party, the General Assembly of the State enacted 
that the paper should pass at its full face value and that any one 
who should refuse to receive the bills on the same terms as 
specie or who discouraged the circulation by refusing to trade 
when the market price was offered for goods would be liable 
to a penalty of one hundred pounds and the loss of the right 
of a freeman. This amounted to the confiscation of property 
as, the actual value being small, the holder of a piece of paper 
would be able to get several times the value in goods. The 
supreme courts on two occasions refused to enforce the penalty, 
holding the law to be in violation of the constitution, the taking 
of property without due process. The triumphant party in the 
general assembly then proceeded to procure judicial sanction 
for their acts by removing four of the five judges and construct- 
ing a court that would render a favorable decision. See Arnold, 
II, pp. 520-36. 
28 Jefferson Works, IX, p. 91-4, 



266 THE GROWTH OF DEMOCRACY. 

Even in this, the birth of our government, some mem- 
bers were found sordid enough to bend their duty to 
their interests and to look after personal rather than 
public good. It is well known that during the war the 
greatest difficulty we encountered was the want of money 
or means to pay our soldiers who fought, or our farmers, 
manufacturers and merchants who furnished the neces- 
sary supplies of food and clothing for them. After the 
expedient of paper money had exhausted itself, certifi- 
cates of debt were given to individual creditors with 
the assurance of payment so soon as the United States 
should be able. But the distress of these people often 
obliged them to part with these for the half, the fifth, 
and even a tenth of their value; and speculators had made 
a trade of cozening them from the holders by the most 
fraudulent practices and by persuasions that they never 
would be paid. In the bill for funding and paying 
these, Hamilton made no difference between the original 
holders and the fraudulent purchasers of the paper. 
Great and just repugnance arose at putting these two 
classes of creditors on the same footing, and great ex- 
ertions were used to pay the former in full and the 
latter the price only which they had paid, with interest. 
But this would have prevented the game which was to 
be played and for which the minds of greedy members 
were already tutored and prepared. When the test of 
strength on these several efforts had indicated the form 
in which the bill would finally pass, this being known 
within the doors sooner than without, and especially 
than to those who were in distant parts of the Union, the 
base scramble began. Couriers and relay horses by land 
and swift-sailing pilot boats by sea were flying in all di- 
rections. Active partners and agents were associated 
and employed in every State, town and country neigh- 
borhood, and this paper was bought up at five shillings 
and even as low as two shillings on the pound, before the 
holder knew that Congress had already provided for its 
redemption at par. Immense sums were filched from the 
poor and ignorant and fortunes accumulated by those 
who themselves had been poor enough before. Men 
thus enriched by the dexterity of a leader would follow, 
of course, the chief who was leading them to fortune, and 
became the zealous instrument of all his enterprises. 



CAUSES OF GROWTH OF DEMOCRACY. 26? 

* * * This game was over and another was on the 
carpet at the moment of my arrival, and to this I was 
most ignorantly and innocently made to hold the candle. 
This fiscal maneuver is well known by the name of the 
Assumption. Independently of debts of Congress, 
the States had during the war contracted separate and 
heavy debts. * * * This money, whether wisely or 
foolishly spent, was pretended to have been spent for 
general purposes and ought, therefore, to be paid from 
the general purse. But it was objected that nobody 
knew what these debts were, what their amount, or what 
their proofs. No matter, we will guess them to be 
twenty millions. But of these twenty millions we do 
not know how much is to be reimbursed to one State or 
how much to another. No matter, we will guess. And 
so another scramble was set on foot among the several 
States and some got much, some little, some nothing. 
But the main object was obtained. Assumption was 
passed and thrown in as pabulum to the stock-jobbing 
herd. 

The speaker of the House of Representatives was one 
of the largest speculators in paper certificates affected 
by these acts. The speaker of 1796 used his offices to 
secure the passage of an act in which he himself was 
interested. A large number of the members were sim- 
ilarly situated and yet they did not refuse to vote and 
act on this account, but rather redoubled their efforts to 
secure laws to their own interest. 29 

After the war of 1812 the energies of the nation were 
employed in the development of the natural resources of 
the country. National roads were built far into the in- 
terior, canals were projected; the tariff was adjusted on 
a basis of giving the largest encouragement to "infant 

29 Mr. Jefferson again writes that "of all the mischiefs ob- 
jected to the system of measures before mentioned none are 
so affecting and fatal to every honest hope as the corruption of 
the legislature." Jeff. Works, III, p. 362. Again he writes, 
"I am averse to giving contracts of any kind to members of 
the legislature. Ibid., V, p. 50. 



2G8 THE GROWTH OF DEMOCRACY. 

industries." Besides, the Napoleonic wars had been set- 
tled and the productive energies of Europe were turned 
toward industrial employment. The security offered to 
capital by universal peace encouraged it to reach out for 
the larger profits offered by the western continent. There 
was a general movement to the west. The government 
of the United States, holding vast territories of the most 
fertile agricultural lands, by its laws, offered these free 
as an inducement to permanent settlement and improve- 
ment. The same liberality was shown as to the mineral 
and timber resources. All these circumstances tended 
to produce an era of new undertaking and speculation 
as to the future of the West. These inducements to 
private speculation and the further fact of there being 
only one political party, tended to lessen the vigil of the 
people over the affairs of the government. Every one 
was seeking his own fortune and the government was 
regarded as an important instrument for the attainment 
of personal ends. As it was hard to obtain a sufficient 
amount of money to prosecute the speculative enterprises 
of those who lived in the newly settled regions, another 
banking and paper, or ''wild-cat," money craze swept 
over the country. The public lands were used as a 
stake for the wildest gambles. The administrative and 
legislative officers were implicated in large schemes for 
profit and very usually the public funds in their hands 
were used as a base of operations. 30 The members of 
the administration were not averse to making contracts 
with the government. The credit of the States was ob- 
tained for private ends; loans were made and immense 
government enterprises were pushed as a means of se- 



•30 With the collapse of each speculative wave, as in 1826 
and 1837, these officers became defaulters. Nearly all of the 
land agents at one time were in default. It was just subse- 
quent to one of these periods of defalcation and general collapse 
( 1 84 1 ) that Mr. Tyler proposed that the merit system of ap- 
pointments be adopted by the federal government. 



CAUSES OF GROWTH OF DEMOCRACY 2G9 

curing lucrative contracts. In the new States the loca- 
tion of county seats, seats of State government and other 
public institutions were the subject of sharp rivalry and 
official connivance. The sale of school lands, grants to 
railways, the taking of capital stocks in private concerns 
and matters of appropriations by special legislation be- 
came matters of abuse. Changes in county lines, the an- 
nexation of territory, the formation of new counties, the 
apportionment of representatives, the changing of the 
lines and the creation of new judicial districts became 
matters of political jugglery. 

As the people, led by Jefferson, had revolted against 
the excesses of government subsequent to the revolu- 
tionary war, during the reign of the Federalists, so now 
they withdrew their support from the Democrats (Re- 
publicans). The new Whig party was the party of re- 
form. The continued excesses under Jackson and Van 
Buren turned the support of the people to Harrison and 
Tyler, whose candidacy stood for opposition to spoils 
and executive misrule and in the interest of Jeffersonian 
simplicity and economy. The log cabin, the coonskin, 
the gourd and cider cask were the symbols of their faith 
which operated like magic to draw the people to their 
support. Harrison received 264 electoral votes, while 
his opponent received only 60. Though the Mexican 
war added materially to the capital of the spoils organi- 
zation, the pressure brought to bear on the government 
was such that prior to the civil war very much had been 
accomplished in the way of provisions for safe and eco- 
nomic administration. 

The civil war, however, introduced into our history 
another period of spoliation. This was a period of 
broadening productive co-operation; the middle West 
had accumulated a large capital; the commercial interests 
of the country were becoming great, the accession of 
Mexican territory gave a new field for expansion ; the dis- 



270 THE GROWTH OF DEMOCRACY. 

covery and production of gold in California set the tide 
of population across the continent and gave to the people 
a large supply of that commodity most readily convert- 
ible into capital adapted to any productive process de- 
sirable. Organizations for the building of trans-con- 
tinental railways and other projects of a magnitude there- 
tofore scarcely more than dreamed of were the order of 
the day. 

This broader co-operation found its most advantageous 
form of organization in the private corporation. The 
advantages of this form of co-operation, however, de- 
pended largely on the privileges and grants obtained 
from the government. It was to their interest to have 
general laws favorable to the centralization of capital; it 
was also much to the advantage of the co-operating ones 
for any particular purpose to procure certain grants and 
privileges which would place them on a plane of especial 
advantage in the management of their concerns. Dur- 
ing the early National period much had been done by 
way of taking away from the legislative and adminis- 
trative departments of government the power of granting 
special privileges to private corporations, but the quasi- 
public corporation, the company which sought to obtain 
control over franchises of way and transportation was 
still free to appeal to these agencies. The sudden pros- 
pects of profit that opened up before them and the ag- 
gregations of capital that were brought together in these 
corporations gave to the projectors both the inducement 
and the means of securing public properties and the use 
of public credit, as well as special concessions and fran- 
chises. After the middle of the century the predatory 
activities of the quasi-public corporation form a large part 
of our economic and political history. Though by 
broader organization they have done much to advance 
the economic interests of society, by reason of their ef- 
forts to secure greater advantage through acts of gov- 



CAUSES OF GROWTH OF DEMOCRACY. 271 

eminent, these organizations have been the principal 
force against which the people have had to contend. They 
have been conditions present calling for modifications 
in our institutions in the interest of the general welfare. 
Added to the fact of the broadening co-operation of 
the time was the circumstance of war; a war in which 
two sections of the nation were straining every resource 
to reduce the other to subservience, the one seeking to 
maintain the broad political organization of the Federal 
government, the other seeking to protect the sovereignty 
of the States. The merit system of civil service had not 
then been established; this was still on a "spoils" basis. 
The party which supported the Federal government 
was omnipotent in its control; there was no strong op- 
position to hold it in check. It became necessary to ex- 
pend the public service as a means of carrying on the 
war and supply the armies in the field. Conditions were 
therefore ripe for spoliation on an elaborate scale as soon 
as the arms of the North had asserted themselves with 
such force as to vouchsafe the integrity of the nation. 
On the one hand were the large corporations seeking 
special grants and privileges of advantage for profit; on 
the other were the forces organized to despoil the treas- 
ury through salaries and official patronage. With only 
one party in favor and with many opportunities offered 
for private gain through the control of the patronage, 
the patriotic impulses of the people were enlisted in sup- 
port of an organized predatory group which used every 
act and deceit to retain the sanction by which they and 
their friends were being enriched. The excesses and 
abuses which followed the civil war form the most shame- 
less part of our history. The manner in which the spoils 
system operated upon the expenditure of government 
appears from the report of the Secretary of the Treasury. 
This shows that in 1848, immediately after the Mexican 
war, the expenditures, outside of the amounts paid out 



272 THE GROWTH OF DEMOCRACY. 

on account of the National debt, interest, premiums, pen- 
sions, Indians, war and navy, were $5,650,000; that im- 
mediately following (1849) the expenditures of the same 
kind amounted to $12,885,000; that in 1854 they reached 
$26,672,000, remaining about the same till 1864, when 
the fate of the nation was practically decided, the ex- 
penditure of the same nature (i. e., practically the cost 
of the civil service) began to rise, in 1865 being $42,989,- 
000; in 1867, $51,110,000; in 1869, $56,474,000, and in 
1874 $85,141,800. The year 1849 marks the beginning 
of a period of National expansion and a necessary in- 
creased expense for the carrying on of the ordinary 
functions and for surveying, National improvement, etc. 
After 1854 was reached the government was carried on 
for ten years, the last three covering the most desperate 
part of the civil struggle, with scarcely any increase. 
After the destiny of the National government was settled 
then began a systematic plundering of the public treas- 
ury through official leechery. Any attempt to portray 
the condition would fall far short of the truth. In 1876 
an issue was made of the practices of the dominant party 
and defeat was avoided only by a partisan electoral com- 
mission. The party of the opposition became so strong 
as to compel retrenchment, yet in 1883, when at last a 
commission was appointed to investigate, a deplorable 
condition of affairs was found. The following is taken 
from the fourth annual report of the civil service com- 
mission, p. 121, et seq: 

Before the enactment of the civil service act the con- 
dition of the executive civil service in the departments 
at Washington and in the customs and postal services 
was deplorable. In the department of the treasury 3400 
persons were at one time employed, less than 1,600 of 
them under authority of law. Of these 3,400 employees 
1,700 were put on and off the pay rolls at the pleasure of 
the Secretary, who paid them out of the funds that had 



CAUSES OF GROWTH OF DEMOCRACY. 273 

not by law been appropriated for the payment of such 
employees. At that time of a force of 958 persons em- 
ployed in the bureau of engraving and printing 539, with 
annual salaries amounting to $390,000, were, upon an 
investigation of the bureau, found to be superfluous. 
For years the force in some branches of that bureau had 
been twice, and even three times, as great as the work 
required. In one division there was a sort of platform 
built underneath the iron roof to accommodate superflu- 
ous employees. In another division twenty messengers 
were employed to do the work of one. The committee 
that made this investigation reported that "patronage," 
what is known as the "spoils system," was responsible 
for this condition and declared that this system had cost 
the people millions of dollars in that branch of the service 
alone. So great was the importunity for place under 
the old system of appointments that when $1,600 and 
$1,800 places became vacant the salaries thereof would 
be allowed to lapse, to accumulate, so that the' accumu- 
lations might be divided among the applicants for place 
on whose behalf patronage mongers were incessant in 
importunity. In place of one $1,800 clerk three would 
be employed at $600 each; would be employed according" 
to the peculiarly expressive language of the patronage 
purveyors, "on the lapse." "In one case," said a person 
of reliability and of accurate information, testifying be- 
fore the Senate committee on civil service reform and re- 
trenchment, "thirty-five persons were put on the 'lapse 
fund' of the Treasurer's office for eight days at the end of 
a fiscal year, to sop up some money which was in danger 
of being saved and returned to the treasury." Unnec- 
essary employees abounded in every department, in every 
customs office and in almost every postoffice. Dismis- 
sals were made for no other purpose than to supply with 
places the proteges of importunate solicitors for spoils. 
One collector at the port of New York removed on the 
average one of his employees every third day to make 
a vacancy to be filled by some member of the same party 
who had "worked to a purpose," not against the com- 
mon political enemy, but for his patron, who had suc- 
ceeded in being appointed over some other member of 
his own party. Another collector at that port, the suc- 
cessor of the one referred to, removed 830 of his 903 

18 



274 THE GROWTH OF DEMOCRACY. 

subordinates at the average rate of three in every four 
clays. * * /* In its first report the commission said: 
It was the expectation of such spoils, which gave each 
candidate for collector the party strength that secured his 
confirmation. Thus, during a period of five years in 
succession, collectors, all belonging to one party, for the 
purpose of patronage, made removals at a single office 
of members of their own party more frequently than at 
the rate of one every day. In 1,565 secular days 1,678 
such removals were made. 

A condition of affairs as deplorable existed in the postal 
service. 

On all sides, in every branch of the civil service, subor- 
dinate places were used in the interest of the leaders of 
the factions of the party, who, by assessments, which were 
disguised in the form of solicitations for money, sug- 
gestions that money ought to be contributed, and other 
methods of this kind, extorted from the public employees 
funds which were used for political purposes, legitimate 
or otherwise. Even members of Congress of National 
reputation signed circular letters addressed to subor- 
dinate civil servants of the government requesting con- 
tributions to be paid to them, as members of a political 
committee; doing this in utter disregard of the spirit of a 
provision of the Revised Statutes declaring it to be un- 
lawful, an offense punishable by fine and dismissal from 
office, for any officer in the public service to solicit 
or receive money from any other officer in such service! 
The public conscience had been perverted by the doc- 
trine that to the victors belong the spoils; and the people 
were not shocked when they beheld public offices be- 
stowed as a reward for partisan services upon persons at 
once unworthy and incompetent. Senator Hoar, in his 
speech on the Belknap impeachment trial, forcefully 
stated the condition of the public mind at that time when 
he said: 

"I have heard in highest places the shameless doctrine 
avowed by men grown old in office that the true way 
by which power should be gained in this Republic is to 
bribe the people with the offices created for their service, 
and the true end for which it should be used when gained 
is the promotion of selfish ambition and the gratification 
of personal revenge." 



CAUSES OF GROWTH OF DEMOCRACY. 275 

Not only were the salaries of office made a means of 
political plunder, but also every interest which official 
acts, legislative or administrative, might affect was count- 
ed as part of the spoils to which the patronage of the suc- 
cessful candidate or party might apply. The "Whisky 
Ring" furnishes an example of the use of the revenues 
of government for the joint purpose of satisfying per- 
sonal ends and perpetuating the party in control. Says 
Gen. John McDonald: 31 

The great whisky frauds culminating in 1875 are a 
part of the history of American politics. No ring was ever 
before formed embracing such a gigantic scope and in- 
cluding among its instigators and membership such dis- 
tinguished government officials. The original intention of 
the organizers, adopting suggestions from the highest au- 
thorities in the land was to make the ring coextensive 
with the nation, with headquarters in the large cities, for 
the purpose of raising a campaign fund with which to 
advance the interests of President Grant in his aspira- 
tions for a second term. So far as my personal knowl- 
edge extends, the money received from the distillers and 
refiners was used according to the original intention of 
the members, until Grant's re-election, when, the purpose 
of the organization having been accomplished, but with 
the management of the colossal fraudulent undertaking 
thoroughly in hand, it was decided to continue the ap- 
propriation of the revenue and to make the members of 
the ring beneficiaries of the fund. During Congres- 
sional and municipal campaigns a part of this fund was 
always used in the interest of the Republican candidates. 

The direct thievings of this ring amounted to many 
millions of dollars. We will not enter into a discussion 
of the "Credit Mobilier," the "Star Route," the "To- 
bacco Ring," "the Carpet-bag" administration of the 
South and other flagrant attempts at the subversion of 
public uses to private ends and the control of privileges 

31 The Secrets of the Great Whisky Ring, p. 17. 



276 THE GROWTH OF DEMOCRACY. 

to be obtained from the government; they are well 
known to the ordinary American, as are also the more 
local but not less corrupt combines such as the Tweed 
Ring, the Philadelphia Gas Ring, etc. The election 
practices by means of which these combinations obtained 
and continued their power is well illustrated in the po- 
litical practices of New York city. At the general elec- 
tion held in that city in November, 1863, the political 
managers so arranged that no one except those in touch 
with the management knew where the places for registry 
were, 32 thus disfranchising a large portion of the voters. 
At the general election of 1867 the ring, feeling em- 
boldened by their previous success, instructed its follow- 
ers that they would be protected in any practice that they 
might employ for the purpose of defeating the opposition. 
Thousands of illegal registrations were made. The 
fourth, the sixth, the eighth, the sixteenth and the twen- 
ty-first wards were overrun with repeaters. The New 
York Tribune on the morning of election day published 
a list of some seven hundred of these names registered 
in nine different wards, and this, as stated in the same 
issue, was only a very partial list. In the eighth ward, 
upon official investigation, more than fifteen hundred 
were found. Men were brought from the States of New 
Jersey and Pennsylvania and their votes received and 
counted. Not only the administrative but also many of 
the judicial officers were servants of the ring. Assaults, 
riots and murders were the order of the day. 33 The im- 
mense sums derived from political assessments and fraud- 
ulent practices, together with the various steals carried 
on almost openly, gave to the corruptionists a fund which, 
together with the general organization of the various 



32 See Election Frauds of New York City, Davenport, p. 49. 
The same method was employed in the presidential election of 
1864. 

33 Ibid., p. 100, et seq. 



CAUSES OF GROWTH OF DEMOCRACY. 277 

local and National rings, through National partisan com- 
mittees, made the spoils organization almost invincible. 
The government of the Southern States during the Re- 
construction period was one of the most shameless parts 
of the general system of political plunder. 

As to the subversion of government in the interest of 
the quasi-public corporations much might also be said. 
It cannot be said that the industrial activities of these 
corporations have been adverse to public interest. Had 
they not contributed to the service of the communities 
in which they operated, had they not rendered a service 
at a less cost than the smaller concerns which were em- 
ployed in like manner they would not have received 
sufficient public patronage to have survived. They have 
done much to advance the industrial processes. The 
master minds which have worked out and managed our 
large transportation companies, our telegraph com- 
panies, our express companies, etc., have rendered a great 
service to humanity, but the methods by which many 
have procured grants and privileges from the govern- 
ment and then, having procured these grants, avoided 
public control and public burdens as a means of obtain- 
ing increased profits or sustaining monopolies are thor- 
oughly reprehensible in themselves and degrading both 
to society and to government. Instead of securing these 
grants and privileges by fair dealing with public agents 
and officers appointed or elected by the people to guard 
the public interest the advantages in profit to be gained 
by a slight variance of the terms of a franchise or grant 
have led them to erect lobbies and bribe public officials 
until they have come to be regarded as the enemies of 
the public. One of the first organizations to take an 
active part in exposing the methods of these corporations 
was the Anti-Monopoly League of New York, organized 
by Peter Cooper, F. B. Thurber and others. As ex- 
pressed by one of its presidents, the main purpose of the 



278 THE GROWTH OF DEMOCRACY. 

anti-monopoly movement was "to resist public corrup- 
tion and corporate aggression. Anti-monopolists have 
no war with honest corporations. These are simply 
forms of co-operative enterprise; and in co-operative ac- 
tion lies the solution of the disputes between capital and 
labor." On April 16, 1883, Mr. Thurber delivered an 
address before a prominent political club of New York 
city in which he summed up the situation as follows: 

The masses do not appreciate how great, many and 
dangerous have been the attacks made by corporate 
monopolies upon our free institutions. Time will not 
permit me to enumerate many of these, but the following 
undisputed facts are sufficiently startling. It is not dis- 
puted that Gould, Vanderbilt, Huntington, Stanford, 
Sage, Field, etc., twenty years ago were comparatively 
poor men, and to-day these five men are worth probably 
$500,000,000; and, through the corporations they con- 
trol, wield the power of $3,000,000,000. 

That they control absolutely the legislatures of a ma- 
jority of the States in the Union; make and unmake 
Governors, judges, United States Senators and Con- 
gressmen, under the forms of popular government, and 
practically are dictators of the governmental policy of 
the United States. 

That within twenty years nearly two hundred millions 
of acres of the public lands have been given to corpora- 
tions, equal to about four acres for every man, woman 
and child in the United States. 

That this wealth and power has been acquired largely 
through bribery and corrviption. Mr. Gould testified 
in 1873 that he contributed money to control legislation 
in four States, and it was proven that the Erie road, in a 
single year under his management, disbursed more than 
$1,000,000 for this purpose. His interference with the 
administration of our courts of justice is illustrated by 
his telegraphing United States Senator Plumb asking 
him to support Stanley Matthews for the United States 
Supreme Court. * * * 

That because Senator Thurman was active in com- 
pelling the Pacific railroads, in which Mr. Gould was in- 



CAUSES OF GROWTH OF' DEMOCRACY. 27$ 

terested, to fulfill their contracts with the government 
that honest man and able statesman could not return to 
the United States Senate. 

That E. D. Worcester, treasurer of the New York 
Central Railroad, testified before the late constitutional 
convention of the State of New York that that railroad 
paid $205,000 one year and $60,000 another year to ob- 
tain legislation, and that it was obtained. 

That in the United States Senatorial contest last year 
(1882) in the State of New York a member of the legis- 
lature stated that he had been given $2,000 to vote for a 
railroad candidate for the United States Senate; that he 
had given the money to the Speaker and asked for an in- 
vestigation. An investigation was ordered, and a State 
Senator and two lobbyists were indicted; but they have 
not been tried, and it is stated that corporation influence 
will prevent their trial, or, if tried, secure their acquittal. 
Even now a bill is pending in our Democratic legislature 
to cover the bribe into the State treasury, but no Demo- 
crat or Republican statesman exerts his influence to have 
the indicted bribers tried, convicted and punished. 

That in 1877 the railroad riots in Pittsburg destroyed a 
large amount of property. The railroads refused to in- 
demnify shippers, but endeavored to make the people 
of the State liable to the railroads. They tried to buy 
a bill through the legislature saddling several millions of 
dollars upon the public. Their usual method of bribery 
was employed, but was detected, and E. J. Petroff, a 
member of the legislature, with several accomplices, 
were tried and found guilty; but here the political influ- 
ence was brought to bear, United States Senator Don 
Cameron leaving his seat in the Senate and going home 
to look after things, and they were pardoned. 

That last winter the railroads of New Jersey united in 
an effort to secure the entire water front of Jersey City 
under the specious guise of confirming the boundaries of 
a map. This infamous bill was such a flagrant disre- 
gard of public rights that the Governor, although elected 
by railroad votes, vetoed it. The Senate again passed it 
over the veto, but the assembly hesitated and bribery, the 
usual monopoly weapon in such cases, was resorted to. 

An investigation was ordered, and the committee re- 
ported that the bribery was fully proven and that John 



280 THE GROWTH OF DEMOCRACY. 

J. Cromer was the man who did it. He has not yet been 
tried, and it remains to be seen whether Jersey justice is 
equal to the task of punishing a corporation briber. 

That in March last two members of the Ohio legis- 
lature were arrested for bribing others in the interest of 
a railroad company, and scarcely a State capitol is with- 
out the yearly proof that bribery is a common corporate 
practice. 

That the Congressional investigation of the Credit 
Mobilier swindle showed that $47,261,000 profit was 
made by a syndicate of Congressmen and other public 
men; and it is a well-known fact that many of our public 
men have become very wealthy without any visible 
means of doing so. 

That Congress is packed with corporation lawyers and 
other representative interests; measures in the interest of 
the people are retarded, smothered or throttled, while 
those in the interest of corporations are consummated 
without the slightest difficulty. 

******** 

That the last Congress not only refused to restore to 
the public domain the lands which had been forfeited by 
the Northern Pacific Railroad, but on motion of Con- 
gressman Reed, of Maine, gag law was enforced and 
Congressman Caswell, of Wisconsin, tried to prevent the 
vote going on record. 

That a large portion of the public travel on free passes 
at the expense of the rest of the community, and a free 
pass issued by the New York Central Railroad is in the 
possession of the Anti-Monopoly League which specifies 
that it was issued on account of the Supreme Court. 

That a committee of the New York legislature, Hon. 
A. B. Hepburn, chairman, after investigating the man- 
agement of railroads in that State used the following 
language: "The abuses in railway management exist so 
glaring in their proportions as to savor of fiction rather 
than actual history." 

That to perpetuate these abuses the perpetrators there- 
of are now seeking to control the thought of the nation. 
Leading journals are purchased with ill-gotten gains 
and the ablest editors in the country are engaged to 
preach "peace on earth and good will to men" in one 



CAUSES OF GROWTH OF DEMOCRACY. -81 

column, while misleading innocent investors and vilify- 
ing patriotic citizens in the others: 

These are undisputed and indisputable facts, and only 
a few of the many straws showing which way the wind 
blows. 

While some of the claims made by Mr. Thurber in his 
statement of conditions may by some be branded as 
partisan, yet the foregoing statement of facts may be 
taken as fairly illustrative of the practices of the time. 
The forces of corruption, which surround legislatures and 
other agencies of government, serviceable to the quasi- 
public corporation, are many, and much of the wealth ac- 
quired by the promoters of these enterprises is as clearly 
the result of predation as were the acquisitions of Wil- 
liam the Conqueror or of the Tweed ring of New York. 

The private corporation has also found conditions fa- 
vorable to the employment of governmental agencies for 
private ends in the tariff laws and the various appropria- 
tions made by the general government as a means to 
patronage and spoils. 

A very large proportion of the people have been con- 
tent to pursue their chosen industry and leave to others 
the business of carrying on the functions of government. 
As long as such an order of things is maintained that 
they are able to conduct their business with profit they 
have little regard for the methods employed. It is only 
when those in control subvert the functions of govern- 
ment, neglect the public welfare and prostitute the ma- 
chinery of State in such a manner that the people begin 
to feel the effects of misrule, that they at last become 
aroused to political activity of sufficient force to over- 
throw the organized despoilers of the public purse and 
betrayers of public confidence. Here again we find a 
manifestation of the polity of conquest; a predatory 
group in control organized for plunder, adverse to the 
principles of government for the governed. Their or- 



282 THE GROWTH OF DEMOCRACY. 

ganization is quite similar to that of an army of invasion; 
their tactics in strategy and deception quite equal to those 
of an Alexander or a Napoleon. But the instruments 
by which they seek to rise to power and gain control of 
the government are quite different from those employed 
by the more ancient conquerors. The modern State had 
demonstrated its ability to cope with armed force, when 
directed against the industrial welfare. Not armed force, 
but "patronage" is the instrument with which the modern 
predatory group accomplishes its ends. 

"Patronage" for the purposes of the spoilsmen is a 
masterly device. It brings into their ranks the very 
forces that in case of open warfare would be arrayed 
against them. It has survived military force for the 
reason that it appeals to the economic interests of the 
industrial members of the State. The entrepreneur, the 
captain of industry, recognizing in the corporation a 
form of industrial organization especially advantageous 
to the successful conduct of widely extended enterprise 
requiring the instruments of large capital, seeks from the 
government a favorable charter. More than that, he 
would have such sovereign privileges and grants of mo- 
nopoly as would give him advantage in his undertaking 
over his competitors. How are these to be obtained? 
By patronage. It is not the general welfare that now 
appeals to him, but patronage; this being held out as a 
means whereby he may obtain ends that are so desirable, 
he at once becomes an ardent supporter of a "part}-," 
through which he hopes to obtain the privileges desired. 

The location of seats of State government were made 
matters of political speculation, the subject of patronage. 
Certain property holders, wishing to have the value of 
their holdings advance by this means, conspired with of- 
ficials and sought the patronage of parties that their 
fortunes might be enhanced. The disposition of school 
lands gave to the party organization certain patronage 



CAUSES OF GROWTH OF DEMOCRACY. 283 

which could be dispensed with effect and profit. The lo- 
cation of State buildings furnished political capital. 
Franchises for railways and canals, with special privileges, 
were especially desirable, and these might be procured 
through patronage. The borrowing of money in the 
name of the State furnished one of the most fruitful 
sources of power. The employment of the "gerry- 
mander" in the interests of party candidates and spoils- 
men, the appointment of representatives, the creation of 
new judicial districts to make room for placemen, the 
arbitrary changing of county lines and removal of county 
seats, the incurring of enormous debts in local political 
subdivisions in the interests of contractors and other 
party beneficiaries, the subscription to stock of corpora- 
tions by public officials are some of the many means of 
obtaining and of distributing this patronage that has be- 
come so powerful in sustaining the party organization. 

When these abuses have become too great to be borne 
by the public at large; when they have been chafed and 
galled and had their will thwarted till they are incited to 
rise up and assert their own political power, the spoils 
organization has been overthrown for a time, but the 
opportunity furnished by our representative system for 
the spoilsman and the corruptionist to subvert the gov- 
ernment has demonstrated to the American people the 
necessity for institutional change. How can we protect 
ourselves from the machinations and insidious designs of 
"politicians" and spoilsmen? How can we break the 
power of the predatory organization? These are the 
questions that the people have been asking themselves, 
and during the last century have attempted to answer, in 
the modification of their institutions. By experience 
they have found that the only way of permanently break- 
ing the power of the predatory group and of protecting 
themselves against its design is by taking away the 
means and removing the inducements for spoliation. 



284 THE GROWTH OF DEMOCRACY. 

Take away the spoils and the whole predatory activity 
ceases. Modify institutions in such a manner that they 
cannot be employed as instruments of private gain and 
as a basis of predatory organization. When we have ac- 
complished this the chief motive to participation in affairs 
of State will be that of promoting the general welfare — 
the prime purpose of modern representative government. 
Remove the system of spoils and official patronage and 
the whole organization of a predatory nature will fall. 
Political parties, divisions among the people on questions 
of public policy will continue, but on a new basis, a new 
principle of organization — that of the welfare of the 
State. Then will we have achieved the aim both of party 
and of popular government. 

Let us consider the modifications of government in 
the United States from this standpoint and note what, if 
any, progress has been made; what our present status 
from an evolutionary point of view. 



RESULTS— IN ELECTIONS. 285 



CHAPTER XII. 

MODIFICATIONS OF LAW AS A RESULT OF POPU- 
LAR CO-OPERATION IN GOVERNMENT— (i) 
RELATIVE TO ELECTION AND AP- 
POINTMENT. 

When public men decry our institutions and pessimism 
claims so large a part in our political philosophy, when 
from pulpit, platform and press we are told of the decad- 
ence of public virtue and of the increasing prevalence of 
public vice, it becomes us as citizens to look out over the 
political field, establish our points of comparison and 
determine if possible in what direction we as a nation 
are drifting — whether our institutions have proved a fail- 
ure, whether they are hopelessly involved in conditions 
of national decay and degradation or whether, on the 
other hand, we are gradually evolving a government that 
will conserve those great interests of society which are 
held up to us as the supreme ideals of political activity. 

In the preceding chapters we have traced the growth 
of democracy in the United States, have shown the rapid 
development of provisions for popular co-operation in 
government. Have the results been good or bad? Are 
we progressing or retrogressing? Having made these 
provisions for popular activity, are we so modifying our 
institutions in response to popular will as to adapt them 
to the attainment of the highest ends of the State, or is 
the State itself being gradually prostituted to the ignoble 
ends of the organized despoilers of society? These are 
questions that confront us. In attempting to answer, 
many writers have offered nothing but discourage- 
ment. We have been told that our government is prac- 



286 THE GROWTH OF DEMOCRACY. 

tically and theoretically wrong; that democracy is a fail- 
ure; that as wealth and population increase our only sal- 
vation lies in the re-establishment of an aristocracy or a 
limited monarchy. Are these portrayals true pictures of 
our condition or are they simply a recital of some of the 
repulsive and disheartening details of a conflict that is 
being successfully waged in the interest of the welfare of 
society? 

Before attempting to answer questions as to the tend- 
ency of the age, we will first undertake to answer those 
propounded in the last part of the preceding chapter. 
The subversion of government in the interest of a few, 
the activities of organized spoliation operating through 
and by means of government, are the conditions which 
have threatened us. How have the people met the issues 
presented? How have they adapted their institutions to 
these conditions for mutual protection and general wel- 
fare? 

As already shown, the method employed by the preda- 
tory group for attaining their ends has been that of gain- 
ing control over party organization— the organ of the 
popular expression — the only device known to popular 
government by which the will of the people can be deter- 
mined. This organ having come under their control, 
the salaries of office and all of the economic advantages 
attainable through the exercise of sovereign functions in 
their own interest became the legitimate spoils of con- 
quest, and these spoils are made both the means and the 
end to further maintaining their organized control. The 
right of peaceable assembly, of freedom of organization 
and association, however, could not be denied. The ex- 
ercise of such rights are fundamental to the whole fabric 
of government based on public opinion, and the expres- 
sion of popular will. To take away this means employed 
by .the predatory group would also deprive the nation of 
political life. The only means left to the people by which 



RESULTS— IN ELECTIONS. 287 

they could cope with those having control of the organs 
of popular expression was, in their constituent and legis- 
lative assemblies, to take away from the predatory group 
the means and inducement to predatory organization and 
control. By taking away the means and inducement to 
spoliation through the government the people might 
retain all of the means of popular expression, relieve the 
organs of the popular will from the danger of subversion 
and leave the party free to act in the interest of the public 
welfare — the purpose of its existence. The only induce- 
ments to spoliation being "patronage," "spoils," and 
these being found in official salaries and in the exercise 
of the functions of government for private gain or as a 
reward for party service, we will first look to the modi- 
fication of our law in this interest, and in the order 
named. 

The "spoils of office" are secured in two ways, viz., by 
election and by appointment. Election involves an ex- 
pression on the part of the political people. The drift of 
constitutions and legislation during the last century has 
been in the direction of protecting the voter from undue 
influence and giving correct returns of his expression; 
of preventing the subversion of the public will. At the 
time of our National establishment very little had been 
done in this direction. Popular government on an im- 
perial scale was an untried experiment. The induce- 
ment to predatory activity in the lesser political divisions 
was small. Viva voce voting was common. It was not 
found necessary to protect the individual voter from co- 
ercion or to compel strict supervision over returns. The 
general welfare was not threatened by a party of organ- 
ized despoilers as comprehensive as the nation, and 
trained in all the details of electoral conquest — an or- 
ganization generaled and captained and under as com- 
plete control as an army of invasion, reaching even to 
the smallest precincts, but governed by a central head 



288 THE GROWTH OF DEMOCRACY. 

whose orders were as imperative as those of a military 
chief — these are conditions which were developed later. 
But as the military group had been one of the agencies of 
extending co-operation in government, and as it finally 
became the means of its own subordination, so in the po- 
litical party this broad predatory organization became the 
means of united effort in its own overthrow. The rivalry 
for spoils created two great predatory organizations, and 
in the conflict that ensued between them, like the con- 
test of monarch and nobility, that organization was suc- 
cessful which appealed most strongly to popular interest. 
The result was a gradual evolution of checks upon the 
activities of each other. Whenever there was any con- 
siderable movement on the part of the people, independ- 
ent of these predatory organizations, to obtain security 
from the incursions of the party in power, the party out 
of power, as a means of getting control of government 
in its own interest, became the champion of popular de- 
mands; 1 and as a result was placed in control at the 
elections. Thus, though each party has despoiled the 
public in turn, yet with each defeat of the party in power 
new restraints have been imposed upon- spoliation; new 
safeguards erected, and new provisions have been made 
for good government. In this manner our election laws 
have been largely perfected. In each constitutional con- 
vention and each meeting of the legislature new meas- 
ures of safety have been adopted, till at present every 
device that the wit of man has been able to evolve has 
been employed in the interest of securing an unbiased 
expression. These provisions have been of two kinds; 
first, those for giving greatest secrecy and freedom for 
the individual voter, and, second, those imposing the 
greatest publicity and restraint on the officers of gov- 
ernment charged with the machinery of elections, there- 

1 See the political platforms of parties and compare with cur- 
rent popular agitation. 



RESULTS— IN ELECTIONS. 289 

by furnishing a double check on all efforts to control 
popular expression, and an adequate means of making 
the voice of the elector strictly his own. 

The necessity for freedom of expression in republican 
government was so apparent that many of our early con- 
stitutions declared the principle in their bills of rights. 
"That all elections ought to be free," 2 "all elections shall 
be free and equal;" 3 "that the right of -the people to 
participate in the legislature is the best security of lib- 
erty and the foundation of all free government; for this 
purpose elections ought to be free and frequent," 4 are 
among these early formulae. Declarations of like pur- 
port are now found in nearly all of the constitutions. 5 

Provisions against coercion and intimidation are of 
two kinds, namely: those against the use of the forces 
of government for the purpose of coercing or intimidat- 
ing the voter, and those against coercion or intimidation 
by private means. The ardor of those in power to per- 
petuate their rule and to obtain authority for its perpetu- 
ation by gaining a semblance of popular approval in 
election has led to the use of armed force. The "Man- 
chester Massacre" in England, 1819, in which several 
hundred persons were maimed or killed by the descent of 
the military upon a large assembly of radicals whose ob- 
ject it was to defeat the administration in the coming 
election and procure certain reforms, is a very striking 



2 Penn., Const. 1776, Dec. of R., VII; N. H., Const. 1784, 
B. of R., XI; N. H., Const. 1792, B. of R, 11. 

3 Del., Const. 1792, I, 3; Del., Const. 1831, I, 3. 

4 Md., Const. 1776, Dec. of R., V. 

5 Ark., Const. 1874, III, 2; Colo., Const. 1876, II, 5; Del., 
Const. 1831, I, 3; 111., Const. 1870, II, 18; Ind.. Const. 1851, 
II, 1; Ky., Const. 1859, XIII, 7; Mass., Const. 1780, I, 19; 
Md., Const. 1867, Dec. of R., 7; Neb., Const. 1875, I, 22; N. H., 
Const. 1792, I, 11; Penn., Const. 1873, I, 5; N. C, Const. 1868, 
I, 10; Ore., Const. 1857, II, 1; S. C, Const. 1868, I, 31; Tenn., 
Const. 1870, I, 5; Mo., Const. 1875, II, q; Va., Const. 1870, 
I, 8; Vt., Const. 1793, L 8. 

19 



290 THE GROWTH OF DEMOCRACY. 

example of this kind. Very little has occurred in this 
country to call for legislative action on the subject of 
military coercion except in the attitude of the general 
government subsequent to the late war. Section 2002 of 
the Revised Statutes of the United States prohibits the 
bringing of armed forces to a place where an election is 
in progress, except to repel the enemies of the United 
States or to keep the peace. Several provisions are also 
found in the State constitutions, as "that no power, civil 
or military, shall ever interfere with the free exercise of 
the right of suffrage." 7 The defeat of the "Force Bill" 
also has some significance in this relation. Says Cooley: 8 

The ordinary police is the peace force of the State, 
and its presence suggests order, individual safety, and 
public security, but when the military appears upon the 
stage, even though composed of citizen militia, the cir- 



c "On the 16th St. Peter's Field, in Manchester, became the 
scene of a deplorable catastrophe. Forty thousand men and 
two clubs of women reformers marched to the meeting, bear- 
ing Hags, on which were inscribed the objects of their political 
faith, 'Universal Suffrage,' 'Equal Representation or Death,' 
and 'No Corn Laws.' However menacing their numbers, their 
conduct was orderly and peaceful. Mr. Hunt, having taken 
the chair, had just commenced his address, when he was inter- 
rupted by an advance of cavalry upon the people. The Man- 
chester Yeomanry, having been sent by the magistrates to aid 
the chief constable in arresting Mr. Hunt and other reform 
leaders on the platform, executed their instructions so awk- 
wardly as to find themselves surrounded and hemmed in by a 
dense crowd — and utterly powerless. The Fifteenth Hussars, 
now summoned to their rescue, charged upon the people sword 
in hand, and in ten minutes the meeting was dispersed, the 
leaders were arrested, and the terrified crowd driven like sheep 
through the streets. Many were cut down by sabers or tram- 
pled upon by the horses, but more were crushed and wounded 
in their frantic struggles to escape from the military. Between 
300 and 400 persons were injured, but, happily, no more than 
five or six lives were lost." — May, Cons. Hist, of Eng., Vol. 
II, p. 354 (London Ed., 1889). 

•Ark., Const. 1874, III, 2; Colo., Const. 1876, II, 5; Mo., 
Const. 1875, II, 9; Neb., Const. 1875, I, 22; Penn., Const. 
1873, I, 5- 

8 Cooley, Const. Lim., Sec. 615. 



RESULTS— IN ELECTIONS. 291 

ctimstances must be assumed to be extraordinary, and 
there is always an appearance of threatening and danger- 
ous compulsion which might easily interfere seriously 
with that calm and unimpassioned discharge of the elec- 
tor's duty which the law so justly favors. The soldier 
in organized ranks can know n'o law but such as is given 
him by his commanding officer, and when he appears at 
the polls there is necessarily a suggestion of the presence 
of an enemy against whom he may be compelled to exer- 
cise the most extreme and destructive force, and that 
enemy must generally be the party out of power, while 
the authority that commands the force directed against 
them will be the executive authority of the State for the 
time being wielded by their opponents. 

This abuse, however, has never threatened us to such 
an extent as to demand constitutional protection. The 
official coercion and intimidation in our system has come 
from other sources such as the employment of the courts, 
of election boards, etc., in the interest of party success. 
In order that the processes of justice might not be 
abused, the constitutions of many States have made pro- 
vision that the courts shall not be open on election days. 9 
In most of the States the constitution provides that elec- 
tors shall be free from arrest while attending, going to 
and returning from the polls, except for treason, felony, 
or breach of the peace. 10 This provision includes arrest 



"Courts are not allowed to be. held, for two reasons — that 
the electors ought to be left free to devote their attention to the 
exercise of their high trust [voting], and that suits, if allowed 
on that day, might be used as a means of intimidation." — 
Cooley, Const. Lim., pp. 614-15. 

10 Ala., Const. 1875, VIII, 4; Ark.. Const. 1874, III, 4; Cal., 
Const. 1880, II, 2; Colo., Const. 1876, VII, 5; Del., Const. 1831, 

IV, 2; Ga., Const. 1877, II, 3; 111., Const. 1870, VII, 3; Ind., 
Const. 1851, II, 12; Iowa, Const. 1857, II, 2; Kans., Const. 1859, 

V, 7; Ky., Const. 1850, II, 9; La., Const. 1879, 189; Miss., 
Const. 1869, IV, 7; Mich.. Const. 1850, VII, 3; Me., Const. 
1820, II, 2; Neb., Const. 1875, VII, 5; Ohio, Const. 1851, V, 3; 
Ore., Const. 1857, II, 13; Penn., Const. 1873, VIII, 5; S. C, 
Const. 1868. VIII, 6; Tenn., Const. 1870, IV, 3; Tex., Const. 
1876, VI, 5. 



292 THE GROWTH OF DEMOCRACY. 

on civil process in Connecticut, 11 Minnesota, 12 Nevada, 13 
Virginia 14 and West Virginia. 15 In eight States electors 
are not required to perform military duty on election 
day, except in time of war or public danger. 10 In some 
States also civil process may not be served on election 
days. 

Coercion and intimidation by election officers is pre- 
vented in many ways, as by making their duties specific, 17 
precluding the officer from obtaining any knowledge as 
to how the elector may have voted, 18 provisions for reg- 
istration, thereby establishing the right to vote prior to 
election day, 19 laws requiring the election officer to re- 
ceive a ballot, though challenged, when the required 
oath has been administered. 20 



11 Conn., Const. 1818, VI. 8. " Va., Const. 1870, III, 4. 

12 Minn., Const. 1859, VII, s. ^ W. Va., Const. 1872, IV, 

13 Neb., Const. 1864, II, 4. 4. 

16 Cal., Const. 1880, II, 3: 111., Const. 1870, VIII, 3: la., 
Const. 1857, II, 3; Mich., Const. 1850, VII, 4; Me., Const. 
1820, II, 3; Neb., Const. 1875, VII, 5; Ore., Const. 1857, II, U; 
Va., Const. 1870, III, 4; W. Va., Const. 1872, IV, 4. 

17 Two of the States make these specifications in their con- 
stitutions. 

18 In several States provisions of this kind are found in the 
constitutions: Ark., Const. 1874, III, 3; Colo., Const. 1876, 
VII, 8; Mo., Const. 1875, VIII, 3; Perm., Const. 1873, VIII, 4; 
W. Va., Const. 1872, IV, 2. Most of the other States provide 
for this by statute laws. 

19 See Am. Eng. Ency. Law, Vol. VI, p. 292, n. I, concern- 
ing effect of registration in this particular in Conn., La., Tenn., 
Ark., Mass., Mo., Cal., etc. 

20 "If the inspectors of elections refuse to receive the vote of 
an elector duly qualified they may be liable both civilly and 
criminally for so doing; criminally, if they were actuated by 
improper and corrupt motives; and civilly, it is held in some 
States, even though there may have been no malicious design 
in so doing. * * * Where * * * by the law under 
which the election is held, the inspectors are to receive the 
voter's ballot if he takes the oath that he possesses the consti- 
tutional qualifications, the oath is the conclusive evidence on 
which the inspectors are to act, and they are not at liberty 
to refuse to administer the oath, or to refuse the vote after 
the oath has been taken; they are ministerial officers in such 
case, and have no discretion but to obey the law and receive 
the votes." — Cooley, Const. Lim., 617. 



RESULTS— IN ELECTIONS. 293 

Intimidation of voters by individuals or groups of in- 
dividuals has been the subject of still more extensive 
legislation. Many of the constitutions provide that the 
right of, suffrage shall be protected from power, bribery, 
tumult, improper conduct, etc., 21 and these constitu- 
tional provisions have been supplemented by statutes 
fixing heavy penalties for infractions. We have but to 
refer to the political and penal codes of our several 
States to acquaint ourselves with the extensive provi- 
sions against the use of coercion, intimidation, undue in- 
fluence, treating, betting, bribing, providing conveyance, 
making promises of employment, threats of discharge, 
and all other forms of corruption and coercion. In all of 
these measures the efforts of law-makers have been sup- 
plemented by the activities of the courts in enlarging 
their control by the use of writs and extraordinary 
process. 

Secrecy to the individual voter as a means of thwart- 
ing the designs of those who would seek to control his 
political expression has been secured by provisions for 
written ballot 22 instead of viva voce 23 voting, require- 

21 Ala., Const. 1875, I, 34; Cal., Const. 1880, XX, 11; Conn., 
Const. 1818, VI, 6; Fla., Const. 1868, IV, 24; Ky., Const. 1850, 
VIII, 4; Ore., Const. 1857, II, 8; Nev., Const. 1864, IV, 27; 
S. C, Const. 1868, I, 33; Tex., Const. 1876, XVI, 2; W. Va., 
Const. 1872, IV, 11. 

22 Ala., 1875, VIII, 2; Cal., 1880, II, 5; Colo., 1876, VII, 8; 
Conn., 1818, VI, 7; Am. 6; Del., 1831, IV, 1; Fla., 1868, XIV, 
5; Ga., 1877, II, 1; 111., 1870, VII, 2; Ind., 1851, II, 13; Iowa, 
1857, II, 6; Kans., 1859, IV, 1; La., 1879, 184; Me., 1820, II, 1; 
Md., 1867, I, 1; Mass., 1780, II, 1; Mich., VII, 2; Minn., 1857, 
VII, 6; Miss., 1869, IV, 7; VII, 1; Mo., 1875, VIII, 3; Neb., 
VII, 6; Nev., 1864, II, 5; N. H„ 1792, II, 14; N. Y., 1846, 
II, 5; N. C, 1868, VI, 3; Ohio, 1851, V, 2; Penn., 1874, VIII, 4; 
R. I., VIII, 2; S. C, 1868, VIII, 1; Tenn., 1870, IV, 4; Tex., 
1876 VI, 4; Vt„ 1793, II, 8, Am. 19; Va., 1870, III, 2; W. Va., 
IV, 2; Wis., 1848, III, 3. 

23 In Kentucky, by. the constitution of 1850, VIII, 15, all 
elections by the people were required to be by viva voce 
vote, except that dumb people might vote by ballot, and quite 
a number of other States provided for like method where the 
people acted in representative capacity. This, however, has 
been abandoned in nearly every State. 



294 THE GROWTH OF DEMOCRACY. 

ments for uniform ballots instead of the many colored 
and many sized mixture at one time used as a means of 
detection, provisions for individual and secret booths for 
the use of the voter in preparation of his ballot, laws 
preventing the attendance of loungers and campaign 
lieutenants at or near the polls, devices to prevent official 
knowledge as to contents of ballots cast by particular 
electors, or, in case of official knowledge obtained in 
rendering necessary assistance in preparation of ballots, 
imposing secrecy under penalty, etc. 

On the other hand, publicity on the part of the public 
agents and officers of election as a means of preventing 
official and party fraud has been secured by laws re- 
quiring acts to be done in plain view, subject both to 
public and official inspection. Notice of the exact time 
and place is made a prerequisite to a valid election. 24 
To insure this notice the time is usually fixed by statute 
or constitution, 25 so that there can be no surprise or 
unfair advantage taken by arbitrary action in the interest 
of a particular "clique." Provisions are also made for 
giving the greatest publicity to the count and canvass of 
returns, as a further guarantee appeal for unwarranted 
acts on the part of officers, contest of elections on the 
ground of fraudulent or illegal acts which may have 
affected the result are provided for. The Australian bal- 
lot system, recently adopted by so many of our States, 
marks the climax of success as a device both for securing 
secrecy to the individual and publicity to official acts. 
The ballot machine, perhaps, holds out some further ad- 
vantages of security and automatic accuracy. In pro- 
tecting the voter from undue influence, in making pro- 
vision for correct returns of electoral expression the 
adaptation has been complete. Our elections in this re- 
spect have come to be such as our form of government 

24 Am. and Eng. Ency. Law, Vol. VI, p. 297; VI, 1, et seq. 

25 See constitutions and statutes of various States. 



RESULTS— IN ELECTIONS. 295 

demands — quiet, orderly days on which the citizen is 
allowed to go to the polls unhampered by threats or 
coercion, to cast his ballot unmolested and in secrecy, 
while official acts are given the greatest publicity and are 
subject to closest scrutiny and review. In this the 
American people may be said to have been eminently 
successful. Some improvement may still be made by 
way of forbidding electioneering on election days, by 
compelling candidates to administer their campaign ex- 
penditures through authorized boards, by making public 
the amounts expended for election purposes and the 
manner in which used. 20 

In one element, however, our electoral system is still 
sadly deficient. It was the prime purpose of the founders 
of our political establishment to make the government 
representative. In this they failed. Instead of estab- 
lishing a government that was representative of the whole 
people, they so devised the electoral system that it repre- 
sented the majority only. They failed to distinguish 
between a government in which the ruling majority of 
the people had a ruling majority of the representatives 
and a government made up entirely of the representatives 
of the ruling majority, in which the minority had no 
voice. It was many years after the establishment of 
popular government before much thought was given to 
the principles of representation; it was many years before 
the tyranny of majorities imposed itself with such force 
as to cause statesmen to inquire. Mr. Thomas Gilpin 
was one of the pioneers in this style of reflection. 27 The 
value of the distinction to government based on the 
principles of general welfare is very great. A failure to 
make the distinction has been the cause of many of our 



26 See Appendix for the "English Corrupt Practice Act" 
and the "Massachusetts Election Law." 

27 See Gilpin, "On the Representation of Minorities, Etc.," 
pub. 1844. 



296 THE GROWTH OF DEMOCRACY. 

political misfortunes. It has laid the foundation for and 
been one of the chief means of the prostitution of our 
government. 

Majority government leads to excesses. It places the 
management of affairs during a term of office entirely 
in the hands of a majority. There may be a majority of 
but one elector at the election, or under our district 
system it often happens an actual minority; and yet the 
representatives of the successful party alone will be 
placed in power. There is no representation of the will 
of the minority — "the defeated parties" — in the govern- 
ment itself. They must remain wholly unrepresented till 
another election two or four years hence, as the case may 
be, when they themselves will have a chance to get en- 
tire control and leave the other parties wholly unrepre- 
sented. The excesses which such a system leads to and 
permits are illustrated in many of the acts of government 
under this regime. It not only leads to excesses, but 
also precludes any sort of responsibility except in so far 
as the party in power may be held responsible to the 
extent of losing their control at the next election. 

The theory of representation in government being 
wrong, the whole electoral system was placed on an im- 
proper basis. The form of popular expression which was 
the logical accompaniment of majority government was 
that of a "general ticket," called in France "scrutin de 
liste." Under this system the electors of each political 
division are allowed to cast a vote for one candidate for 
each office to be filled in that division, and those candi- 
dates who receive the greatest number of votes for each 
office are declared elected. In this way the majority 
party takes complete possession of the deliberative bodies 
as well as the administrative departments, and the minor- 
ity has no representation whatever. 28 

28 "With such a system, the question of equal representation 
plays no part whatever. The minority parties are without a 



RESULTS— IN ELECTIONS. 297 

The form of election closest to the "general ticket," 
but one step removed from majority rule in the direction 
of representative government is the "District system." 
This makes provision for minority representation in the 
general government by dividing the territory into dis- 
tricts and allowing each district to send its majority 
representatives, so that, in case any district is strong in * 
the minority party, the representatives of the minority 
party in this district will have a share in the affairs of the 
State. The district system has two forms, viz.: the small 
"one membered district" and the large "multiple mem- 
bered district." As stated before, this system gives an 
opportunity for minority representation, but is subject to 
so many evil practices as to make it the worst possible 
form. In the first place, it subjects the district to all of 
the faults of majority representation that the general 
ticket does the State. In the second place, it has given 
birth to the "gerrymander," a practice whereby the State 
is so districted by the partisan legislature as to cause the 
greatest loss of voting strength to the party out of con- 
trol, and to give the greatest effect to the voting power 

single representative. * * * For example, the city of Cleve- 
land, Ohio, recently introduced, with the sanction of the State 
legislature, a far-reaching reform in its system of public 
schools, one feature of which is the election of a school board 
of seven members on a general ticket. In the first election 
under this plan the vote stood as follows: 

Republican. Democratic. 

Buss 15,714 Dodge 13.661 

Boutell 15,595 Gouldin 13,551 

Backus 15,385 Pollner 13,306 

House 15,860 Ryan 12,851 

Daykin 16,198 Burke 12,814 

McMillan 15,690 Hoffman 12,777 

Ford 16,036 Plent 12,804 

"It will be seen that the Republicans obtained the entire 
board, but had there been a change of only 1,000 or 2,000 votes 
from Republicans to Democrats the Democrats would have 
carried their entire list. — Commons, Proportional Representa- 
tion, p. 86. 



298 



THE GROWTH OF DEMOCRACY. 



to the party in control. It often happens, therefore, that 
the minority instead of the majority rules. This is even 
more vicious than the majority rule, as it places the gov- 
ernment in opposition to the expressed will of a ma- 
jority of the people. It is a still more dangerous form 
of tyranny, and wholly foreign to the spirit of our in- 
stitutions. The possibility of a gerrymander offers an 
inducement to corrupt practices on the part of the legisla- 
ture of the State, and when employed in this work, the 
highest deliberative body of the State is degraded to the 
level of the lowest ward committee. The length to which 
legislatures have gone in the interest of party "spoils" 
is well illustrated by Mr. A. J. Turner, in "The Gerry- 
mander of Wisconsin." On page 26 we find the follow- 
ing diagram of the Ninth Senatorial District, apportion- 
ment of 1 891: 



-<- 



TOWNS OF MOSROE CO. 




WAUSHARA 




o.< 



The reapportionment of congressional districts in Ohio 
(1888) which made one Republican vote equal to three 
Democratic votes, is quite as interesting. 

The apportionment of 1890 for the Fourth and Seventh 
Congressional Districts of South Carolina is characteris- 
tic. These districts, as shown in accompanying cut, are 
flagrant distortions in the making of which little regard 
is had for county lines. Party success is the only end in 
view at the time of making a "gerrymander." 



RESULTS-IN ELECTIONS. 



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300 



THE GROWTH OF DEMOCRACY. 



These legislative grovelings are quite as significant as 
that historic act of apportionment in Massachusetts, from 
which the practice first got its name. 




In the third place the district system furnishes an in- 
ducement for the use of every form of corruption in 
doubtful districts, these being strategic points in the cam- 
paign for spoils. Nothing better illustrates the working 
of this principle of elections than the presidential elec- 
tions. Under the present practice the several States are 
the districts, in each of which a number of presidential 
electors equal to the number of senators and represen- 
tatives are to be elected on a "general ticket." In a 
State like Texas, where at times there have been demo- 
cratic majorities of something like 200,000 votes, there 
is little effort made. Others are equally "solid" repub- 
lican States, but in States like New York and Indiana, 



RESULTS— IN ELECTIONS. 301 

which are doubtful, which have a large number in 
the electoral college, and whose electors will prac- 
tically insure the success of the party securing 
them, every device fair or foul is employed to 
win votes; the whole party machinery of the 
nation is set at work to capture these votes; money 
is poured into the till of the campaign central committee 
from every precinct; millions of dollars are collected as 
a fund for bribery and corruption ; the State is districted 
for party purposes; every district is blocked out and 
officered by a party lieutenant who has under him sub- 
workers; every voter is "sounded." If he can be 
bought, means are at hand for that purpose; if he can 
be influenced by patronage, this is apportioned; if he 
can be "colonized," provisions are made to this end; if 
by any hook or crook he can be taken into camp, nothing 
is left undone to accomplish it, but if he cannot be won 
over, then, as a last resort, debauchery by drunkenness, 
"spiriting away," and every means possible is employed 
to make him inefficient in the service of the enemy. 
Nothing more reprehensible could be imagined than the 
practices made possible under the district system. And 
nothing has been so great a menace to the freedom of 
our institutions. No plan could be more favorable to the 
success of organized corruption and spoliation. 

The next step in the evolution was that of a "limited 
vote." This system was used for nine years in the elec- 
tion of aldermen in New York. It is a modification of 
the district system. The city was divided into districts, 
in each of which three aldermen were to be elected. In- 
stead of allowing the voter to vote for three candidates 
he was allowed to vote for two only. The majority party 
could, therefore, elect only two candidates, except in 
wards where two-thirds or more of the Voters were of 
one party. Boston adopted the same system for the 



302 THE GROWTH OF DEMOCRACY. 

selection of her twelve aldermen-at-large, the voter hav- 
ing only seven votes. The majority could ordinarily 
elect only seven of the twelve. By this method, how- 
ever, representation is not proportional and does not 
accord with popular expression. Moreover, it furnishes 
a means of party manipulation, and often sacrifices many 
votes. It does not provide for any added independence 
to the citizen. It does not make the majority more 
highly responsible. It does not give such a force to "in- 
dependents" as to make them a factor in politics. 

The "cumulative vote" is still another step in the right 
direction. By this device the elector is allowed to cast 
as many votes as there are representatives to be elected, 
or, in case of the election of a board, as many as there are 
members to be elected. These votes may be distributed 
as the voter pleases. They may be given, one to each of 
the candidates, or all to one, or divided in any way to 
suit him. When applied to the election of representa- 
tives the State is divided into large "multiple membered 
districts." For example, in Illinois each district has 
three representatives, and the voter can give one vote to 
each, three to one, two to one and one to another, or 
one and one-half to each of two. In this way a small 
minority may elect a representative, when under any 
other system it would have none. This, however, at 
times works ruinous results. It sometimes gives the 
government to a minority, sometimes wastes a large 
number of votes, and sometimes permits of very danger- 
ous political combinations. 

The effects of the cumulative system in Illinois have 
been summarized as follows: 2 " 

i. It appears that representatives of third parties do 



29 Commons, Proportional Representation, p. 93; from M. N. 
Forny, Political Reform by Representation of Minorities, New 
York, 1894. 



RESULTS— IN ELECTIONS. 303 

not, as a rule, secure election. In 1892 the prohibition- 
ists in the State mustered for representatives 24,684 vot- 
ers (not votes); the people's party 20,108, out of a total 
of 872,948. If these parties could have concentrated 
their votes, they would have elected four and three mem- 
bers respectively, out of a total of 153. In the election 
of 1894, the results were as follows: 



Illinois Legislature, 1894. 

Votes for Per cent Represen- Propor- 
Represen- of total, tatives tional. 
tatives. elected. 

Republicans 1,332,488 53.4 92 82 

Democrats 914,735 37.2 61 57 

Prohibitionists ... 43,402 1.7 3 

People's Party ... . 174,465 7.1 11 

Independent 6,323 .2 

Ind. Democrats . . 1407 

Ind. Republicans . 8,867 -3 

Amer. Citizen. . . . 2,585 .1 

Scattering 2,575 

Total 2,486,847 100. 153 153 

The elections are therefore confined, as in the limited 
vote, to the candidates of the two dominant parties. 
Unlike the single-membered district system, however, 
both parties have representatives from every part of the 
State instead of from the strongholds only, and there are 
no hopeless minorities of the two main parties. 

2. Votes are wasted whenever a popular candidate re- 
ceives "plumpers" beyond the number necessary to elect 
him. "A candidate who runs far ahead is just as dan- 
gerous to his own party as a man who runs far behind. 
Under the old system the man who runs ahead does so at 
the expense of his adversary, but under the cumulative 
system it is at the expense of his colleague." For ex- 
ample, in the election of 1894 the vote of the forty-fifth 
district was as follows: 



304 THE GROWTH OF DEMOCRACY. 

Callahan Republican 11,140 

Black Democrat 9<793i 

Tiptit . Democrat 9.699! 

Lathrop Republican 9,628 

Palmer People's Party 2,92 1^ 

Smith Prohibition 960 

The total Republican votes were 20,768, representing 
approximately 6,923 voters; the Democratic votes were 
19,493, representing 6,498 voters. Yet the Democratic 
minority elected two representatives and the Republi- 
can plurality only one, because Callahan, Republican, 
received at least 1,400 votes more than he needed, but 
his colleague, Lathrop, lacked at least 75. This result 
occurred in one district in 1892, and in three districts in 
1894. 

3. In order to obviate this waste, all the resources of 
the party managers are enlisted, and the party machine 
becomes even more indispensable than under the old 
system. In the first place, the managers determine how 
many candidates shall be nominated. Only where the 
parties are close, as in the forty-fifth district above cited, 
do both parties nominate two candidates. In other cases 
the minority party nominates but one, and a nomination 
is equivalent to an election. For example, the vote in 
the thirty-sixth district was: 

Kitz Miller Republican !6,525 

Minuts Democrat 9- OI 32 

Jones Democrat 9>°59 

Winters People's Party 2,360 

Kelly Prohibition 1,117 

The Republicans, though lacking but 1,500 of the 
Democratic vote, nominated but one candidate. Again 
in close districts the managers must exercise great care 
in selecting good "running mates," as did the Democrats 
in the forty-fifth and thirty-sixth districts. For these 
reasons the party organization is greatly strengthened, 
there is a strong opposition to "plumping," and voters 
are careful not to disobey the party instructions. 

4. The quality and ability of representatives are no 



RESULTS— IN ELECTIONS. 305 

better than under the old system. In close districts, 
where four candidates are nominated, there may be slight 
improvement, but in other districts, where a nomination 
is equivalent to an election, the worst elements get con- 
trol and bid defiance to the people. There are frequent 
"deals" between parties, the minority agreeing to put up 
one man, and the "gang" in both parties controlling the 
primaries. 

The cumulative vote, therefore, whether in small or 
large constituencies, must involve either waste and guess- 
work, or extreme dictatorship of party machinery. 

Another device adopted as a means to representative 
government is that of "indirect election." This method 
was quite common during the first two or three decades 
of our national history. It took the forms of election 
of State officers by the State legislatures, and by coun- 
cils of appointment; and in the national government the 
election of president and senators by an electoral college 
and the legislature. It was originally intended to make 
the government, as far as possible, non-partisan, repre- 
sentative, and to insure a high degree of ability and 
merit. It failed in all these respects. It not only failed, 
but became one of the chief instruments of corruption 
and "spoils." On this account the system has been elim- 
inated from the States. The rigidity of the federal con- 
stitution has so far precluded a change there, and it 
stands out to-day as a revolting blotch on our national 
system. Senatorial seats are bought and sold. The 
successful candidate for President is necessarily a machine 
man. The system of indirect election remains as a con- 
dition which demands a remedy at the hands of the 
people. It stands as a bar to progress, and must be re- 
moved before we can hope to attain a true representative 
government. 

It appears, therefore, that our elections have become 
"free," but that they are not "equal." That every pro- 
tection is given against threats, coercion and undue in- 

20 



+- 



306 THE GROWTH OF DEMOCRACY. 

fluence; that provision has been made for secrecy to the 
individual, publicity to official acts, accuracy and justice 
in making returns, and that efforts are being made to 
control the conduct of campaigns in the interest of pub- 
lic honor and safety, but it also appears that something 
still remains to be done before the citizen is guaranteed 
equality of suffrage and a representative government 
instead of machine and majority rule. 

As to appointments: Here, too, we have made marked 
progress within the last century. The "spoils" system 
employed in the States from the first inception of party 
activity, later ushered into the federal administration, 
and firmly fixed upon it by Andrew Jackson, in 1828, 
has been gradually giving way to the "merit" system 
of appointments. "Civil Service Reform" has been the 
slogan of progress for the last fifty years. The first 
reform measures in the matter of appointment were in 
the nature of constitutional provisions taking this power 
out of the hands of the legislature and putting it in the 
hands of the executive, or the people in popular elec- 
tions. In the hands of the governor, however, it was also 
used to party and to personal ends. With the patron- 
age of office in his hands his position became of supreme 
advantage in the quest for spoils. This fact not only 
encumbered and degraded the highest executive office, 
but also weakened the administration and loaded the 
people with an incompetent and supernumerous admin- 
istrative service. Agitation for the adoption of the merit 
system began early in the century. 30 In 1853 the sub- 
ject found expression in a federal statute. 31 But this 

30 In December, 1841, President Tyler, by message, recom- 
mended the adoption of a merit system of appointments. A bill 
following his suggestion was introduced into the house by Mr. 
Gilmer, but received little support. 

31 U. S. Statutes at Large, March 3, 1853, Ch. 97, Sec. 3. 
This statute provided: "That from and after the thirtieth of 
June, eighteen hundred and fifty-three, the clerks in the De- 



RESULTS— IN APPOINTMENTS. 307 

statute made no practical change, as the examining offi- 
cers were the same as those who made the appointments, 
and the examinations were little more than a farce. At 
most the same political influences were left to work out 
their peculiar ends. 

During and subsequent to the Civil War the spoils 
system obtained fullest sway. The government became 
prostituted to a mammoth system of political plunder. 
Availing themselves of national sentiment as a means of 
gaining control, the quasi patriots who controlled the 
party councils and exercised the powers of government 
built up a system of political lechery such as would have 
done credit to a Roman provincial governor. Another 
attempt to inaugurate the merit system was made in 
1871. 32 On March 3d of that year, the last day of the 
forty-first Congress, a law was passed which empow- 

partments of the Treasury, War, Navy, the Interior, and the 
Post Office, shall be arranged in four classes, of which class 
number one shall receive an annual salary of nine hundred 
dollars each, class number two an annual salary of one thou- 
sand two hundred dollars each, class number three an annual 
salary of one thousand five hundred dollars each, and class 
number four an annual salary of one thousand eight hundred 
dollars each. * * * 

"No clerk shall be appointed in either of the four classes 
until after he has been examined and found qualified by a 
Board, to consist of three examiners, one of them to be the 
chief of the Bureau or office into which he is to be appointed, 
and the two others to be selected by the head of the Depart- 
ment to which the said clerk will be assigned. * * * 

"Each head of the said Departments may alter the distribu- 
tion herein made of the clerks among the various Bureaus 
and offices in his Departments if he should find it necessary 
and proper to do so." 

32 S. at L., 1871, Ch. 114, Sec. 9, March 3. Sec. 9: "That the 
President of the United States be, and he is hereby, authorized 
to prescribe such rules and regulations for the admission of per- 
sons into the civil service of the United States as will best 
promote the efficiency thereof, and ascertain the fitness of such 
candidates in respect to age, health, character, knowledge and 
ability for the branch of the service into which he seeks to 
enter; and for this purpose the President is authorized to 
employ suitable persons to conduct said inquiries, to prescribe 
their duties, and to establish regulations for the conduct of 
persons who may receive appointments in the civil service." 



308 THE GROWTH OF DEMOCRACY. 

ered the President to prescribe such rules as might be 
necessary to "best promote the efficiency" of the civil ser- 
vice and "ascertain the fitness" of candidates. But the 
next Congress, and in fact every Congress following, 
refused to make appropriations and other arrangements 
necessary to the carrying of the act into effect, and the 
law simply remained as a historic expression. The rea- 
son for inaction on the part of Congress is explained by 
the report of the Civil Service Commission. 33 

When the security of the Republican party had been 
shaken by such excesses as these, and the people were 
finally aroused against wholesale spoliation and misrule, 
when the administration had all but lost in one national 
contest, and was only saved by an electoral commission, 
it became necessary, on the approach of another elec- 
tion, for it to satisfy this popular clamor for civil ser- 
vice reform, or suffer loss of their entire hold on the 
government. A law was then passed to secure this end. 
The law of 1883 34 follows in its essential characteristics 
the civil service law of England. 35 The law of 1883 first 

33 See extract of report, supra, p. 2.72. 

34 "An Act to Regulate and Improve the Civil Service," 
passed Jan. 16, 1883; Chap. 27 of S. at L., 1883. 

35 England had a marked advantage over the United States 
in the establishment of civil service on the merit system. Ap- 
pointments were usually by the executive in both countries. 
In England, prior to 1855, the whole political machinery, its 
party organization and the forces which tended to mold the 
institutions, had been built up in opposition to prerogatives of 
the executive. The executive being hereditary, and his ap- 
pointees being largely dependent on his will, even the spoils- 
men, in so far as not associated with the crown, all those 
who hoped to work by popular consent were arrayed against 
unrestricted powers of appointment. Here, under our party 
systems, our executive became the chief lever in the "machine," 
and all of the party machinery was put in motion to retain these 
appointments as party spoils. Then, too, the legal notion that 
an appointee had a right to an office growing out of "hered- 
itary succession and life tenure" was a condition which made 
removals and new openings scarce. It was not worth while to 
organize for appointments. Therefore the easier and earlier 
adoption of the merit system in England and other European 
states. 



RESULTS— IN APPOINTMENTS. 309 

provided for a separate, continuous, bi-partisan com- 
mission composed of three commissioners, who should 
"hold no other official place under the United States," 
the duties of which commission was to aid the President 
in making rules, and when these rules should be promul- 
gated, to assist in all proper ways in carrying them into 
effect. The act further prescribed as essential to these 
rules: 

1st. That there should be open competitive examina- 
tions testing the fitness of applicants for the classified 
public service. 

2nd. That all the offices, places and employments so 
arranged or to be arranged in classes should be filled 
by selections according to grade from among those 
graded highest as the result of such competitive examina- 
tions. 

3rd. That appointments to the public service afore- 
said in the departments at Washington should be ap- 
portioned among the States and territories according 
to -population as ascertained by the census. 

4th. That there should be a period of probation to 
further test the fitness of the applicant, before absolute 
appointment. 

5th. That no person in the public service should be 
under obligation to contribute to any political fund, and 
should not be removed or otherwise prejudiced by re- 
fusing so to do. 

6th. That no person in the service should have a 
right to use his official authority to influence or coerce 
political action of any other person or body. 

7th. That provision should be made for filling places 
by non-competitive examination when competent persons 
do not compete for places. 

8th. Provisions for notice, records, reports, etc. 

The other sections of the act were such as to provide 
for salaries, reports, records of proceedings, examina- 



310 THE GROWTH OF DEMOCRACY. 

tions, quarters, penalties for infractions of law and rules, 
classification of officers and employees by departments, 
etc. 

Officers not in the executive branch of government, 
persons employed as laborers or workmen, and those 
appointed with the advice and consent of Senate were 
excluded from operation of the law. 

The benefits of this law to the service have been almost 
inestimable. From the time of its taking effect to the 
present, its operation has been gradually extended. The 
classified service now includes: (i) clerkships in the 
chief departments at Washington, the Civil Service Com- 
mission and the Department of Labor; (2) all customs 
cffices having over thirty employees, whose salaries are 
$900 or more; (3) the departmental postal service, in- 
cluding all free delivery offices; (4) the entire railway 
mail service; (5) the Indian service, including physi- 
cians, teachers, matrons, etc. Out of the 180,000 federal 
employees, 87,000 are now in the classified service. The 
Commission has recommended to the President its ex- 
tension (1) to the mints and sub-treasuries; (2) to every 
branch of the customs service having twenty-five or 
more employees; (3) to the navy yards employees; (4) 
to all employees of District of Columbia. 

The example of the national government has been fol- 
lowed by several of the States in regulations for the 
civil service of the large cities. The law of Illinois passed 
March 20, 1895, is one of the best of these. It is a 
local option law, and was adopted soon after its passage 
by the people of the city of Chicago at an election held 
for that purpose. The obstacles to the successful opera- 
tion of any law intended to reform the civil service of 
this city and substitute the "merit" in lieu of the "spoils" 
system were many. In the first place the latter had be- 
come thoroughly rooted in the very fiber of the political 
society. In the second place the party organization was 



RESULTS— IN APPOINTMENTS. 311 

bitterly opposed to reform and has sought in every way 
to thwart its success. In the third place there were many 
legal and constitutional questions that were relied upon 
to harass the commission and postpone action on their 
part. But looking over the Chicago of the past and the 
Chicago of to-day for comparison, the most conservative 
must admit a marked advance both in efficiency of ser- 
vice and economy.. The activity of the Civil Service 
Commission of the city of Chicago may be appreciated 
when we consider that under this law about 35,000 appli- 
cations have been filed and about 22,000 examined. Of 
these about 13,000 were passed, and over 6,000 of this 
number have been certified for appointment. 

The statement of the present commission (1) relative to 
its work is as follows: 

Appointed May 3, 1897. Served eight months to date 
of report. 

Examinations held 103 

Applications filed 19,461 

Applicants passed. 8,136 

Applicants certified (for appointment). . . 4,176 
Applicants given employment 3,758 

In every city where adopted the merit system has 
proved successful, and as citizens we may hope that the 
day is not far distant when official appointments instead 
of being placed on a basis of "spoils" to parties, the ob- 
ject of predatory organization 36 , will be placed on a basis 
of "service to the public." 



36 Cook county has also adopted the merit system of appoint- 
ments, thus in a measure relieving this political organization 
from the effects of the "spoils" system. 



312 THE GROWTH OF DEMOCRACY. 



CHAPTER XIII. 

MODIFICATIONS OF LAW AS A RESULT OF POPU- 
LAR CO-OPERATION (2) RELATIVE TO THE 
EXERCISE OF THE OTHER FUNC- 
TIONS OF GOVERNMENT. 

As to the exercise of the other functions of govern- 
ment, the adaptations of our law for the protection of 
the people from spoliation have been many. In the first 
place the form of government adopted by the people of 
the United States, in so far as the exercise of executive 
and judicial functions are concerned, in a large measure, 
accomplished this. The contest had already been waged 
for centuries along this line; the independence of the 
colonies marked the successful issue of the conflict in the 
interest of the people. By the frame of government es- 
tablished here every precaution was taken, every provi- 
sion made against arbitrary action on the part of these 
officials, that the experience of the past had dictated. 

A legal fiction was employed which assigned to ex- 
ecutive and judiciary delegated powers only, 1 while the 
legislature, composed of chosen representatives of the 
people, was deemed to have the residuary powers, i. e., 
those powers not expressly or impliedly given to the 
executive and judiciary, or by express limitation reserved 
to the people themselves. In the subsequent exercise of 
sovereign powers, therefore, we find that those functions 
which the predatory group have been able to control 
in their own behalf have been largely legislative. The 



1 The constitutional provisions for elections were limitations 
on the appointing power. 



RESULTS— IN LEGISLATION, ETC. 313 

institutional adaptations of the century have been chiefly 
along this line. 

The legislature is essentially' a law-making body. It 
is designed to meet from time to time to revise and 
modify the established order in such a manner as to adapt 
this order to the changing conditions of the people. Its 
functions do not require constant attendance and con- 
tinuous activity as do the functions of adjudication and 
administration. They are essentially deliberative. De- 
liberation demands that they hold in mind the social, 
economic and political conditions; that they act in the 
interest of the whole body politic. In order to secure 
these ends it is necessary that each member have full 
knowledge of all legislative acts as well as of the inter- 
ests to be affected thereby. That deliberation may be 
secured, the people in framing their constitutions have 
required: 

i. That no law shall be passed except by bill, 2 there- 
by making it necessary to present all matters for con- 
sideration in open and formal manner. The bill, how- 
ever, may be introduced in either house, 3 but must, there- 
after, be introduced into the other, where it may be 
amended, altered or rejected, 4 and in case it is altered or 
amended, must again return to the first house for con- 
currence. 



2 See Ala., Const. 1875, IV, 19; Ark., 1874, V, 21; Cal., 1880, 
IV, 15; Colo., 1876, V, 17; Ind., 1851, IV, 1; la., 1857. HI, 15; 
Kans., 1859, II, 20; Md., 1867, II, 29; Mo., 1875, IV, 25; Neb., 
1875, HI, 10; Nev., 1864, IV, 23; N. Y., 1846, III, 14; Penn., 
1874, III, 1; Tex., 1876, III, 30; Wis., 1848, IV, 17. 

3 See Cal.. 1880, IV, 15; Fla., 1868, IV, 12: 111., 1870, IV, 12; 
Ind., 1851, IV, 17; Me., 1820, IV, 3; Md., 1867, III, 27; Miss., 
1869, IV, 23; Mo., 1875, IV, 26; Neb., 1875, HI, 9; Nev., 1864, 
IV, 16; N. Y., 1846. Ill, 13; Ore., 1851, IV, 19; Ohio, 1851. 
II, 15; S. C, 1868, II, 18; Tenn., 1870. II. 17; Tex., 1876, III, 
31; Vt, 1793, Am. 3; Va., 1870, V, 9; W. Va., 1872, VI, 28. 

*See Id., Ala., Ark., Cal., Col., Fla., 111., Ind.'. la., Kans., 
Me., Md., Mo., Neb., Nev., N. Y., Ohio, Ore., Penn., S. C, 
Tenn., Tex., Va., W. Va., Wis. 



314 THE GROWTH OF DEMOCRACY. 

2. That every bill must be read three different times 
on three different days in each house. 5 

3. Some of the State constitutions also require that 
no bill shall be passed till it shall have been referred to 
a committee and reported therefrom, 6 and all of them 
have made provision by rules for the careful considera- 
tion of bills in committees. 

In order to secure knowledge of the condition of the 
State as a basis for deliberation provisions are made: 

1. Requiring the executive at the commencement of 
each session of the legislature or from time to time to 
give information by message of the condition of the 
State and to recommend such measures as he may deem 
expedient. 7 

2. Providing means whereby the governor may be 
informed as to the state of affairs. To the end that he 
may have the necessary information the constitutions 
have given the governor power to require information in 
writing from the officers of the executive and adminis- 



5 Ala., 1875. IV. 21; Ark., 1874. V, 22\ Cal., 1880. IV, 15; 
Colo., 1876, IV, 22; Fla., 1868, IV, 15; Ga., 1877, III, 7; 111., 
1870, IV, 13; Ind.. 1851, IV, 18; Ky.. 1850, IV, 29; La., 1879. 
37; Mich., 1850, IV, 19; Minn., 1857, IV, 20; Miss., 1869, IV, 
23; Mo., 1875. IV, 26; Nev., 1864, IV, 18; N. J., 1844, IV, 4; 
Ohio, 1851, III, 16; Ore., 1857, IV, 19; Penn., 1873, HI, 4; 
S. C, 1868, II, 21; Tenn., 1870, II, 18; Tex., 1876, III, 32. 

6 See Ala., 1875, IV, 20; Colo., 1876, V, 20; La., 1879, 37; 
Mo., 1875, IV, 27; Penn., 1873, III, 2; Tex., 1870, III, 37. 

7 See Ala., 1875, V, 11; Ark., 1874. VI, 8; Cal., 1886, V, 10; 
Colo., 1876, IV, 8; Conn., 1818, IV, 8; Del., 1831, III, 11; 
Fla., 1868, V. 9; Ga., 1877, V, 1; 111., 1870. V, 7; Ind., 1851, 
V, 13; la., 1857, IV, 9; Kans., 1859, I, 5; Ky., 1850, III. 12; 
La., 1879. VII, 1; Me., 1820, V, 1; Md., 1867. II, 19; Mich., 
i8so, V. 8; Minn., 1857, V, 4; Miss., 1869, V, 8; Mo., 1875, 
V, 9: Neb.. 1875, V, 7; Nev., 1864, V, 10; N. J., 1844. V, 6; 
N. Y., 1846, IV. 4; N. C, 1868, III, 5; Ohio, 1851, III, 7; 
Ore., 1857. V. 11; Penn., 1874, IV. 11; S. C, 1868, III, 15; 
Tenn., 1870, III, 18; Tex., 1876. IV, 9; Va., 1870, IV, 5; VV. Va., 
1872, IV, 5; Wis., 1848, V, 4- 



RESULTS— IN LEGISLATION, ETC. 315 

trative departments upon any subject relating to the 
duties of their respective offices. 8 

3. The provision, under our system, whereby the 
legislature has full power to appoint committees and pro- 
vide other means of making inquiry into all subjects, 
these committees having, under statute, the same power 
as a court or a grand jury, to subpcena witnesses, to com- 
pel attendance, to adduce evidence under oath, etc. This 
is one of the most valuable means of gaining informa- 
tion, and one which will be constantly more employed 
as our system becomes more special and complex. 

The whole legislative procedure framed under these 
constitutional requirements conserves the same end. It 
is customary when a bill is introduced to read it first by 
title, in order that notice may be given of its introduc- 
tion and subject matter. The second reading is in full, 
and is regularly had on another day. After the second 
reading it is commonly referred to a committee, where it 
may receive the fullest and most informal consideration 
and discussion. This committee may be a regular stand- 
ing committee, or a special committee, and its meeting 
either public or secret. Very commonly arguments from 
those whose interests might be affected are heard pro 
and con. The committee may report favorably or un- 
favorably, or not reporting, may be compelled so to do 
by order of the house. Upon motion, the report coming 
up for consideration, it is read, and any amendments pro- 
posed. 9 Upon the closing of the debate the third read- 

8 See Ala., 1875, V, 9; Ark., 1874, VI, 7; Cal., 1880, V, 6; 
Colo., 1876, IV, 8; Conn., 1818, IV, 6; Del., 1831, III, 10; 
Fla., i860, V, 5; Ga., 1877, V, 1; 111., 1870, V, 21; Ind., 1851, 
V, is; la., 1857, IV, 8; Kans., 1859, I, 4; Ky., 1850, III, n; 
La., 1879, 70; Me., 1820, V, 1; Mich., 1850, V, 5; Minn., 1857, 
V, 4; Miss., 1869, V, 6; Mo., 1875, V, 22; Neb., 1875, V, 22; 
Nev., 1864, V, 6; N. C, 1868; Ohio, 1851, HI, 6; Ore., 1857, 
V, 13; Penn., 1874, IV, 10; S. C, 1868, III, 14; Tenn., 1870, 
III, 8; Tex., 1876, IV, 24; Va., 1870, IV, 6; W. Va., 1872, VI, 8. 

9 See Ala., 1875, IV, 19; Ark., 1874, V, 21; Colo., 1876, V, 17; 
Mo., 1875, IV, 26; Penn., 1873, HI, 1; Tex., 1876, III, 31. 



316 THE GROWTH OF DEMOCRACY. 

ing of the bill is had in full. 10 After passing one house 
in this manner it is then sent to the other, where the 
same proceedings are had before passage there. If 
amendments are made, then it must be returned to the 
first chamber and the process continued till, in the regular 
form, there has been a concurrence of both houses on 
the measure. It is then sent to the executive, who must 
also pass on the bill, or, failing to approve, return it with 
his objections to the house in which it originated. This 
again requires reconsideration and amendment, or 
in case the legislature wishes to pass the measure over 
the veto of the executive, two-thirds vote of all the mem- 
bers of each house in the affirmative is usually required. 

Various constitutional prescriptions are also made to 
prevent surprise, deception and fraud, such as: 

i. That no bill shall relate to more than one subject 
and that this shall be expressed in the title. 11 

2. That no bill can become a law unless on its final 
passage a majority in each house shall vote in the af- 



10 In N. Y. (Const. 1894, VI, 15) the rule is that the bill 
as a whole must be read the next day after consideration 
in the committee of the whole. For reason ascribed in the 
constitutional convention for adopting this rule see Vol. I, 
Debates of Convention, 1894, P- 2 4°- 

11 See Ala., 1875, IV, 2; Cal., 1880, IV, 24; Colo., 1876. V, 21; 
Fla., 1868, IV, 14; Ga., 1877, III, 7; HI, 1870, IV, 13; Ind., 1851, 
IV, 19; la., 1857, HI, 29; Kans., 1859, H, 16; Ky., 1850, II, 37; 
La., 1879, 29; Md., 1867, III, 29; Mich., 1850, IV, 20; Minn., 
1857, IV, 27; Mo., 1875, IV, 28; Neb., 1875, III, n; Nev., 
1864, IV, 17; N. J., 1844. IV, 7; Ohio, 1851, III, 16; Ore., -1857, 
IV, 20; Penn., 1873, III, 3; S. C, 1868, II, 20; Tenn., 1870, 
II, 17; Tex., 1876, III, 35; Va., 1870, V, 15; W. Va., 1872, VI, 30. 

The reason for such provisions is found in the experience of 
the people. Some of the most high-handed measures had, prior 
to the incorporation of such provision, been saddled upon the 
public by designing individuals, who secured their passage by 
misrepresentation in the titles of the acts. The titles and all 
exterior evidences of content would indicate one subject, per- 
haps quite laudable in itself, while in some of the sections of the 
bill a wholly different subject of legislation would appear. 



RESULTS— IN LEGISLATION, ETC. 317 

firmative, and in most of the constitutions this majority 
is defined: In some a majority of those present 12 is suf- 
ficient, or of "each house," 13 but most of them require a 
majority of those elected. 14 

3. In order that this last provision may be enforced, 
a large number of the State constitutions require the 
ayes and nays to be entered on the journal, so that the 
record will show that the constitutional requirement has 
been complied with. 15 

4. That no law should be revised, altered or amended 
"by reference" to its title only; but the act revised and 
sections altered or amended must have been enacted and 
published "at length." 16 Or, as in New York and New 
Jersey, that no act should be passed which should pro- 
vide that any existing law or part thereof should be made 



12 See Fla., 1868, IV, 15. 

13 See Ala., 1875, IV, 21; Ark., 1874, V, 22. 

14 See Cal., 1880, IV, 15; Colo., V, 22; Ga., Ill, 7; 111., 1870, 
IV, 12; Ind., 1851, IV, 25; la., 1857, II, 17; Kans., 1859, IT, 13; 
La., 1879, 37; Md., 1867, III, 28; Mich., 1850, IV, 19; Minn., 
1857, IV, 13; Mo., 1875, IV, 31; Neb., 1875, III, 10; Nev., 1864, 

IV, 18; N. J., 1844, IV, 4; N. Y., 1846, III, is; Ohio, 1851, II, 9; 
Ore., 1857, IV, 25; Penn., 1874, III, 4; Tenn., 1870, II, 18. 

15 See Ala., 1875, IV, 21 ; Ark., 1874, V, 22, and Id., Cal., 
Colo., Ga., 111., la., Kans., Md., Mich., Minn., Mo., Neb. Nev., 
N. J., N. Y., Ohio, Penn., Tenn. 

The presumption being in favor of the validity of an act of 
the legislature, and the regularity of proceedings after an act 
had been duly authenticated, there was no means of preventing 
an act being passed without even a quorum being present unless 
question was raised or the ayes and nays demanded at the time 
of the passage. Therefore in order to protect the State against 
such a use of power, these provisions were made requiring 
the record to show the majority prescribed by the constitution. 

16 See Ala., 1875, IV, 2; Ark., 1874, V, 23; Cal., 1880, IV, 24; 
Colo., 1876, V, 28; Fla., 1868, IV, 14; Ilk, 1870, IV, 13; Ind., 
1851, IV, 21; Kans., 1859, II, 16; La., 1879, 30; Md., 1867, III, 
29; Mich., 1850, IV, 25; Mo., 1875, IV, 33; Neb., 1875, III, 11; 
Nev., 1864, IV, 17; N. J., 1844, IV, 7; Ohio, 1851, II, 16; Ore., 
1857, IV, 22; Penn., 1873, HI, 6; Tex., 1876, III, 36; Va., 1870, 

V, 15; W. Va., 1872, VI, 30. 



318 THE GROWTH OF DEMOCRACY. 

or deemed a part of the act or be applicable except by in- 
serting it in such act. 17 

5. Limitations on the power of legislature to make 
laws of resolution. 18 

6. Provisions limiting the time within which bills may 
be introduced. 19 

7. Provisions prohibiting the consideration of a bill 
once defeated, at the same session. 

8. Prescriptions as to manner of voting, for a divi- 
sion, for a count by tellers when demanded by one-fifth 
of members, and that final vote shall be by ayes and nays. 

9. Provisions for enrollment of bills after their pas- 
sage providing for verification of correctness by joint 
committee on "Enrolled Bills," and the adoption of the 
enrollment by each house. 

10. Laws governing the affixing of the signature of 
the speaker of each house and of the executive. 20 



17 N. Y., 1846, III, 17; N. J., 1844, IV, 7. 

In others, all acts which repeal, revise or amend former 
laws shall recite in their caption or otherwise the substance 
of the act repealed or revised. 

These provisions were adopted to protect the people from 
the amendment, modification, repeal or revival of acts by fraud 
and deceit; they likewise had the effect of making the body of 
the law more easily understood than when amended by refer- 
ence. 

18 See Willard's Leg. Handbook, p. 236, et seq. This lim- 
itation applies with especial strictness in appropriations (Id., 
p. 128) in covering indebtedness (Id., p. 130), payment of legis- 
lative employes (Id., p. 131), etc. 

19 In Colorado, Const. 1876, V, 19, it is provided that "No 
bill except the general appropriation bill for the expenses of the 
government only, introduced into either house of the general 
assembly after the first twenty-five days of the session shall 
become a law." In others fifty days is the limit. In Mary- 
land, not within the last ten days, and in Indiana none can 
be presented to the governor within the last two days. 

20 These restrictions on the legislature and prescriptions for 
their action have grown out of certain abuses that in many 
cases were in most flagrant violation of official trust. _ As, for 
example, the presenting of a bill to a speaker for signature 
before it was passed by the legislature, foisting it upon the State 
without remedy, the legislature having adjourned before it was 



RESULTS— IN LEGISLATION, ETC. 319 

In order that a greater degree of responsibility may be 
insured, that a greater degree of publicity might be given 
to public acts, and that the people may be able to locate 
the responsibility with greater accuracy and ease, con- 
stitutional provisions have been adopted: 

1. Requiring a journal of proceedings to be kept and 
published. 21 

2. Prescribing that the doors of the legislature shall 
be open and that the proceedings shall be public. 22 

3. That all voting shall be viva voce. 23 

4. That the ayes and nays shall be entered in the jour- 
nal published. 24 

In order that the public may have ample notice of any 
change made in the established order by the legislature, 
many of the constitutions have provisions to this end. 25 

discovered, the changing of words in a law to give it a dif- 
ferent meaning as it was being enrolled, the introducing of 
bills at the last of a session and rushing them through without 
time for knowledge of the contents. 

21 "That a journal shall be kept" is required by all of the 
constitutions except that of Mass., and all of these except Ore- 
gon require that the same be published. About fifteen of the 
States, however, except those proceedings which require se- 
crecy. 

22 See Ala., 1875, IV, 15; Ark., 1874, V, 13; Cal., 1880, IV, 13; 
Colo., 1876, V, 14; Conn., 1818, III, 11; Del., 1831, II, 9; Fla. 
1868, IV, n; 111., 1870, IV, 10; Ind., 1851, IV, 13; la., 1857 

III, 13; Md., 1867, III, 21; Mich., 1850, IV, 12; Minn., 1857 

IV, 19; Miss., 1869, IV, 15; Mo., 1875, IV, 19; Neb., 187s. 111,8 
Nev., 1864, IV, 15; N. H., 1792, II, 8; N. Y., 1846, III, n 
Ohio, 1851, II. 13; Ore., 1857, IV, 14; Penn., 1873, II, 13; S. C. 
1868, II, 27; Tenn., 1870, II, 22; Tex., 1876, III, 16; Vt, 1893 
II, 13; Wis., 1848, IV, 10. 

23 Provisions requiring "ayes and nays" carry this with them. 

24 These provisions have a double purpose of insuring a 
quorum and giving publicity to the acts of members. 

25 The lack of notice of changes in law was one of the greatest 
faults of government and one of the last to be corrected. In 
Germany there is not any provision made for this yet, and some 
of our States suffer materially on this account. During the 
sitting of the legislature in such States as these no man may 
know what the order of society is nor how to conduct himself 
and his business in a lawful manner. Most of our States have 
provided for this. 



320 THE GROWTH OF DEMOCRACY. 

In some the laws do not go into effect till published, but 
take effect immediately thereafter ; 2,i in Louisiana on the 
day of publication in the place where the State journal is 
published and twenty days thereafter in other places; in 
Tennessee on the fifteenth day after final passage; 27 in 
Mississippi on the sixteenth day after; in others on the 
ninetieth day after the end of the session, 28 while others 
prescribe a certain day after the session. But notice is 
provided for in many other States where the effect of the 
act is not made to depend on publication. 

II. 

But constitutional provisions adopted for the purpose 
of securing legislative deliberation and the proper knowl- 
edge of the political and economic conditions, for pre- 
venting surprise, deception and fraud, fixing responsibil- 
ity for official acts, and giving timely notice of changes 
in the law — all of these have to do with the manner of 
procedure. They are guaranties established for the pur- 
pose of securing the conditions necessary for wholesome 
legislation. The constitutional provisions adopted as a 
means of protecting the people against the exercise of the 
legislative functions of government for predatory ends 
are quite as significant. These have to do with the sub- 
ject-matter of legislation. They are imposed for the pur- 
pose of limiting the powers of the legislature, of placing 
such checks on the exercise of these powers as to lessen 
the inducement to predatory activity, of reducing the 
quantum of "spoils" obtainable through the control of the 
legislative functions. Among the subjects of legislation 
upon which these limitations have been imposed are the 
following: 



26 See Ind., 1851, IV, 28; Wis., 1848, VII, 21. 

27 Cons. 1870, II, 20. 

28 See constitutions of Mo., Mich., Neb., Ore., Tex., W. Va. 



RESULTS— IN LEGISLATION, ETC. 321 

I. APPROPRIATIONS.— The first restrictions im- 
posed by our constitutions on the power of appropria- 
tions was, that revenue bills should originate in the 
House of Representatives. 29 This restriction had a his- 
toric foundation that gave it great force in England, but 
when adopted here was found to be wholly unnecessary, 
and therefore an incumbrance. The tendency for a long 
time has been to abandon it. All other restrictions, 
however, have grown out of conditions present and have 
proved to be well adapted to our needs. One of the most 
important of these is the requirement that "no money 
shall be paid out the treasury except upon appropriations 
duly made by law." 30 This was primarily a limitation 
upon the executive and administrative departments, but 
it has also had great force in legislation by way of laying 
the foundation for other limitations. Owing to the 
provisions requiring "appropriations by law" various re- 
strictions on the legislative power have been made pos- 
sible, such as: "The general appropriation bill shall 
embrace nothing but appropriations for the ordinary 
expenses of the executive, legislative and the judicial 
departments of the State." 31 In several States expense 




; Cal.. 1873. IV, 13; 
iQAfi i\r T £. rio 



322 THE GROWTH OF DEMOCRACY. 

for public schools may be included in the general appro- 
priation bill. 32 In some the interest on the public debt, 33 
the sinking fund, 34 etc. Specific provisions are also made 
for the inclusion of salaries of State officers generally, 35 
of the legislature, 36 the "civil list" 37 cost of collecting the 
revenue, 38 support of institutions under State control 
and management, 39 support of eleemosynary institutions, 
etc. 40 

"All other appropriations 41 are required to be made by 
separate bills, each embracing but one subject." 42 In 
one State 43 the general appropriation must be made first 
and is given precedence over all others. 44 

In order to give publicity to these acts it is provided 
by the constitutions of most of the States that a regular 
statement of receipts and expenditures of public moneys 
must be published. In two this report must be made 
every three months; 45 in others annually; 40 in a few 



32 Ala., 1875, IV, 32; Colo., 1876, V, 32; la., 1877, III, 7, 9; 
La., 1879, 53; Mo., 1875, IV, 43; Penn., 1873, III, 15- 

33 Ala., 187s, IV, 32; Colo., 1876, V, 32; Ga., 1877, HI, 7, 9; 
La., 1879, V, 3; Mo., 1875, IV, 43; Penn., 1873, III, 15. 

34 Mo., 1875, IV, 43- 

33 Colo., 1876, V, }2; Fla.. 1868, IV, 30; 111., 1870, IV, 16; 
Neb., 1875, III, 19; Ore., 1857, IX, 7; W. Va., 1872, VI, 42. 

36 Mo., 1875, IV, 43. 

37 Id. 

38 Id. 

39 Cal., 1873, IV, 16; Ga., 1877, III, 7, 9. 
i" La., 1879, 53; Mo., 1875, IV, 43. 

41 That is, all appropriation bills other than those included in 
the general appropriation bill. 

42 Penn., 1873, III, 15; La., 1879, 53; Ga., 1877, III, 7, 9; 
Colo., 1876, V, 32; Cal., 1880, IV, 34; Ark., 1874, V, 30: Ala., 
1875, IV, 32. 

43 Mo., 1875, IV, 43. 

44 This probably grew out of the "carpet-bag" experiences 
subsequent to the war. 

43 Ga., 1877, III, 7; La., 1879, 43. 

40 Ala., 1875, IV, 33; Ky., 1850, VIII, 5; N. C, 1868, XIV, 3; 
S. C, 1868, II, 22; Tex., 1876, XVI, 6; W. Va., 1872, X, 3. 



RESULTS— IN LEGISLATION, ETC. 323 

every two years; 47 in several at or after each session of 
the legislature, with the laws, 48 while others prescribe 
that these reports shall be made "in such manner as by 
law directed." 49 In Indiana and Oregon no special act 
making compensation to a person claiming damages 
against the State can be passed. In Maryland the legis- 
lature can appropriate no money in payment of a private 
claim over $300, unless proved before the comptroller 
and reported on by him. In New York, Michigan and 
Virginia the legislature cannot audit or allow any private 
claim or account. The constitution of Illinois provides 
that the legislature shall make no appropriations of 
money out of the treasury by any private law; and in 
Texas that no appropriation for private or individual 
purposes shall be made. In several of the States 50 no 
appropriation of money or grant of property can be made 
by the State to any individual or corporation, municipal 
or other. 51 

In several of the States the legislature cannot authorize 
the payment of any claim against the State under an 
agreement or contract made without the authority of 
law. 52 In some this is extended to municipalities also. 53 



47 See Del., 1831, II, 15. 

48 Cal., 1873, IV, 22; Fla., 1868, XII, 5; Ga., 1877, III, 7; 
111., 1870, IV, 17; Ind.. 1851, X, 4; la., 1857, III, 18; Me., 
1820, V, 4; Md., 1867, III, 32; Mich., 1857, IX, 11; Neb., 1875, 
III, 22; Nev., 1864, IV, 19; Ore., 1857, IX, 5; S. C., 1868, 
IX, 11; Tenn., 1870, II, 24; Vt, 1793, II, 28; Va., 1870, X, 18. 

49 See Ark, 1874, XIX, 12; Conn., 1818, IV, 21; Kans., 1859, 
XV, 5; Mo., 1875, X, 19; Tex., 1876, VIII, 6. 

50 Ga., 1877, VII, 16; La., 1879- 56; Mo., 1875, IV, 46; Neb., 
187S, HI, 18; N. J., 1844, I, 20; Tex., 1876, III, 51. 

51 These provisions arose, no doubt, as also those set forth 
on pages 321, 2 and 4, from the practice that had been in vogue 
whereby valuable properties and rights or monies had been 
procured from the government by individuals and corporations 
through the employment of State agencies in their own behalf. 

52 Ala., 1875. IV, 28; Cal., 1873, IV, 32; 111., 1870, IV, 19; 
La., 1879. 45; Mo., 1875. IV, 48; Tex., 1876, III, 53; W. Va., 
1872, X, 3. 

m Cal., 1873, IV, 32; La., 1879, 45; Tex., 1876, III, 53. 



324 THE GROWTH OF DEMOCRACY. 

In others again money cannot be paid on any claim the 
subject-matter of which is not provided for by the exist- 
ing laws. 54 

One of the most recent and most effective means of 
guarding the interests of the people and the treasury 
against invasion, through the legislature, is that of "the 
executive veto of specific items" of appropriation bills. 
By this means the executive can effectively check all 
"log rolling" schemes. He can veto such items as appear 
to him unwise or adverse to public interest and leave the 
other items stand. He is made the guardian of the treas- 
ury and is held responsible for the performance of his 
trust. 55 

2. TAXATION. — This is one of the most important 
and at the same time least understood subjects with 
which publicists and people have to do. Its theories 
are most involved, its laws most diverse and its admin- 
istration is most uncertain and inequitable. The unset- 
tled policy of our law, the lack of unanimity in. popular 
thought, the incompetency and subservience of the ad- 
ministrative forces under the "spoils" system are condi- 
tions which have rendered evasion and spoliation easy. 
Our whole system of taxation is ill-advised and ill-adapt- 
ed to the best results. In the first place, the division of 
taxing power between Federal and State authority is 
ill-adjusted. To the Federal government has been 
granted "power to lay and collect taxes, duties, imposts 
and excises." "Duties, imposts and excises" are the 
most fruitful means of raising a revenue known to mod- 
ern government. These have been put into the hands of 
the Federal government, while the chief burdens of gov- 
ernment have been imposed on the States. Having 



54 Ark., 1874, V, 27; Colo., 1876, V, 27; la., 1857, III, 31; 
La., 1879, 45; Nev., 1864. IV, 28; Ohio, 1851, II, 27; Penn., 
1873, HI, 11; Tex., 1876, III, 44. 

55 See post, page 417, for further discussion of this subject. 



RESULTS— IN LEGISLATION, ETC. 3£& 

handed over to the National government the best sources 
of revenue, we have relieved it of those functions which 
require the greatest expenditure. Aside from the ex- 
penses incurred for military purposes, the expenditures 
for National government have been comparatively 
small. 56 This enormous taxing power of the National 
government, placing in its hands large revenues which 
are easily collected, furnishes one of the best means of 
political spoils. On the other hand, the States cannot 
raise the revenues needed for administration without 
placing very serious burdens on the people. We have a 
system of National waste and State burden. In the 
second place, the conflict of Federal and State law allows 
of numerous evasions of the just burdens of government, 
as by quasi-public corporations, etc. In the third place, 
there is no continuity of administration in the several 
States. Each school district, town, county and State is 
independently organized so far as taxation is concerned. 
There is no means provided for systematic and equitable 
financial administration. In the fourth place, there has 
been no sufficient check on assessment, such as would 
preclude those having large properties from procuring 
estimates favorable to themselves and adverse to equitable 
taxation. In fact, under the present system it has been 
the aim of individuals, towns, counties and all other tax 
units to falsify the records in such a manner as to relieve 
themselves of the burdens of State and impose them on 
others. 

Many constitutions provide that taxation shall be equal 
and uniform throughout each State or local subdivision 
levying a tax. 57 This is the announcement of the prin- 

56 It has been estimated that 90 per cent, of the national 
expenditures have been, directly or indirectly, for military pur- 
poses. 

57 Ark., 1874, XVI, s; Colo., 1876, X, 3; Fla., 1868, XII, 1; 
Ga., 1877, VII, 2; Ind., 1851, X, 1; Kans., 1859, XI, 1; La., 
1879, 203; Mich., 1850, XIV, 11; Minn., 1857, IX, 1; Miss., 1869, 



326 THE GROWTH OF DEMOCRACY. 

ciple. Pursuant thereto other constitutional provisions 
have been made, such as the following: All taxes levied 
shall be assessed in exact proportion to the value of the 
property; 58 every member of society is bound to con- 
tribute his portion to the expenses of government; but 
no part of his property can be taken without his own 
consent or legislative authority; 59 no tax, impost, duty 
or charge can be levied except in pursuance of a law; 00 
every law imposing a tax shall state distinctly the object 
of the same; and no moneys arising from a tax levied for 
one purpose shall be used for any other purpose. 61 

The modifications of our statute law relative to taxation 
are neither satisfactory nor, at present, well adapted to 
the economic conditions of our society. It is well known 
to the student of finance that the basis of taxation has al- 
ways been determined by the ruling force in the State; 62 



XII, 20; Mo., 1875, X, 3; Nev., 1864, X, 1; N. J., 1844, IV, 7; 
N. C, 1868, V. 3; Ohio, 1857, I, 32; S. C, 1868, IX, 1; Tenn., 
1870, II, 28; Tex., 1876, VIII, 1; Va.. 1870, X, 1; W. Va., 
1872, X, 1; Wis., 1848, VIII, I. 

5S Ala., 1875, XI, 1; Ark., 1874, XVI, 5; Cal., 1873, XIII, 1; 
Ga., 1877, VII, 2; Ind., 1851, IX, 1; La., 1879, 203; Me., 1820, 
IX, 8; Mass., 1780, II, 1; Mich., 1850, XIV, 12; Minn., 1857, 

IX, 1; Miss., 1869, XII, 20; Mo., 1875, X, 4; Neb., 1875, IX, 1; 
N. J., 1844, IV, 7; N. C, 1868, V, 3; Ore., 1857, IX, 1; S. C, 
1868, I, 36; Tenn., 1870, II, 28; Tex., 1876, VIII, 1; Va., 1870, 

X, 1; W. Va., 1872, X, 1. 

59 Mass., 1780, I, 10; N. H., 1792, I, 12; Md., 1867, Dec. 
of R., 14, 15; S. C, 1868, I, 36-7; Vt, 1793, I, 9; Va., 1870, 1,8. 

60 Ark, 1874, XVI, n; Fla., 1868, XII, 3; Kans., 1859, XI, 4; 
Mo., 1875, X, 1; Ohio, 1851, XII, 5; Ore., 1857, IX, 3; S. C, 
1868, IX, 4. 

61 Ark., 1874. XVI, 11; la., 1857, XII, 7; Kans., 1859, XI, 4; 
Mich., 1850, XIV, 14; N. Y., Am., 1874-5, Art. 3, Sec. 20; 
N. C, 1876, V, 7; N. Dak., 1889, 175; Ohio, 1851, XII, 5; 
Ore., 1857, IX, 3; S. C, 1868, IX, 4; S. Dak., 1889, XI, 8; 
Va., 1870, X, 16; Wash., 1889, VII, 5; Wyo., 1889, XV, 13. 

(i2 During the reign of feudalism, and under the worst forms 
of absolutism, those who were too weak to resist were taxed. 
The power to resist exaction was the means by which the 
industrial classes obtained recognition and an equitable appor- 
tionment of tax burdens. 



RESULTS— IN LEGISLATION, ETC. 327 

that ideals of justice in taxation have been such as to 
conserve the economic interest of those in control of the 
government. When the State is ruled by certain classes 
these classes adopt such a theory as will shift the burden 
of taxation to others. 63 When the government becomes 
democratic and is controlled by a majority, then the 
economic interest of the majority becomes the rule of 
conscience; the political power becomes shifted from 
property to persons, and the wealthy classes, being in 
the minority, the theory that taxes should be paid in 



63 History is full of examples of this kind. The occurrence 
is so general that it can be stated as a rule. When the landed 
nobility ruled the taxes were imposed on others. When the 
merchant princes became strong enough to resist they were 
given a place in government and the tax burdens were so 
adjusted that the burdens fell on the less powerful. Indirect 
taxes, such as customs duties, excises, etc., were represented 
as being most just, because by this means the burdens fell on 
the consumer. All being consumers, these were held to be 
a general tax on expense. In England, immediately prior to 
the year 1688, most of the revenues derived from taxation were 
"hearth money," and those derived from articles consumed, in- 
cluding (1) the old subsidy — 5 per cent on the value of goods as 
rated in 1660; (2) tonnage on wines; (3) the duty on woolen 
cloth; (4) the specific duties on wine, tobacco and sugar, French 
and India linen, silks, brandy, etc.; (5) the hereditary excise 
on beer and other liquors, and (6) the temporary excise granted 
during the life of the sovereign. (See Dowell on the History of 
Taxation and Taxes in England, Vol. II, pp. 17-37.) These 
taxes were most burdensome to the poor. After the revolution 
of 1688, a general tax on property having been imposed during 
the war, this form of taxation was for a time retained, but by 
1702, the general government having become well settled in 
the hands of the three ruling estates, and these ruling estates 
comprising a very small proportion of the population, direct 
taxation resolved itself into (1) taxes on land, (2) on houses 
and windows, (3) on the trade of hawkers, (4) on the business 
of hackney coaches, (5) on burials, births and marriages, and 
(6) on bachelors (Id., pp. 38-65), while taxation by customs, 
excises and stamp duties were increased and continued to in- 
crease under their rule till after the political reforms of the 
early part of the nineteenth century (Id., pp. 239-300). After the 
enlargement of the political constituency in England the prin- 
ciple of taxation changed. With the admission of the "fourth 
estate," the. common people, into political power, direct taxes 
became the principal source of revenue, and the principle of 
taxation according to ability was established. 



328 THE GROWTH OF DEMOCRACY. 

proportion to the ability of the taxpayer is evolved. 64 
In America democracy found itself under peculiar con- 
ditions. The people, at the time of our National estab- 
lishment, were unaccustomed to being heavily taxed; the 
National government was loaded with debt; the territory 
over which it exercised jurisdiction was undeveloped, 
the larger part being unsettled. While the new nation 
was poor in capital, it was rich in possibilities. Its nat- 
ural resources offered great inducements for capital to 
enter. The most productive form of taxation, therefore, 
in fact the only one from which a large revenue could be 
realized at once, was the indirect form — a levy of customs 
duty on goods imported. The people being unused to 
heavy taxation, excises held out another fruitful source 
from which revenue could be easily derived. These two 
forms of taxation were utilized by the general govern- 
ment. 05 They were laid as a matter of necessity. 

Indirect taxes being necessary and at the same time 
being undemocratic and inequitable, when levied on all 
commodities indiscriminately, attempts were made to 
levy them in such a manner that they would not violate 
the general welfare. To this end excises were laid on 
those articles adjudged to be luxuries, in order that 
these (the indirect) taxes might also, as far as possible, 

64 The principle of taxation according to ability may be said 
to have been evolved from a desire on the part of the majority 
to shift the burdens of the state on the wealthy classes. But 
in so shifting the burden it becomes necessary to preserve some 
equitable basis — to so administer the tax laws as not to dis- 
courage the accumulation of capital necessary to the economic 
welfare of the community. To discourage accumulation and to 
tax savings inordinately would be injurious to the welfare of 
the majority. Capital being a necessary factor, democratic 
society has sought to so adjust the tax burdens that they shall 
be equitable. The working out of a tax system according to 
the ability of the various members of society to bear the 
burdens of state has been the problem, and in so far as success- 
ful, the achievement of the present century. 

03 It must also be held in mind that the general government 
was an experiment and the people of the several States were 
very slow to yield the exercise of too much direct power. 



RESULTS— IN LEGISLATION, ETC. 329 

conform to the democratic principle of payment accord- 
ing to ability; customs duties were so adjusted that 
capital would be induced to come in, and, coming in or 
being produced, would be employed in the development 
of the natural resources. A general tax laid on con- 
sumption in its very nature raises the prices of commod- 
ities consumed within the territory subject to the tax. 
This circumstance was utilized to the end desired. By 
laying duties on those articles which might be produced 
to advantage at home the price would be raised; the in- 
creased price would encourage the development of those 
resources from which such products were drawn. This 
was the policy adopted by the general government from 
the first, and, as a result, while large revenues have been 
raised by customs, they have aided in drawing capital to 
our shores and directing it along such lines of industrial 
employment that within a hundred years the United 
States has been transformed from a wilderness of unde- 
veloped resources to an empire whose wealth is unsur- 
passed — whose resources are in a very high state of 
economic utility to the nation. Thus both forms of indi- 
rect taxation were made to conform, as far as possible, to 
ideals of general welfare. 

No attempt has been made to justify indirect taxation 
on principles of equality. All parties have conceded that 
the burdens imposed by the customs, for example, have 
been unequal and, from the standpoint of "ability to pay," 
unjust. Customs duties were based on the principles of 
necessity and expediency — necessity as a revenue meas- 
ure and expediency as a means of encouraging "infant 
industries." Since the time of the revolution we have 
been involved in three wars; at the present time we are 
engaged in another. Two of these wars have taxed the 
best resources of the nation to the utmost. When neces- 
sity has been present the tax has always. been favored by 
a majority of the people; but with each relief from the 



330 THE GROWTH OF DEMOCRACY. 

pressure of necessity the expediency of continuing the 
customs duties at an unduly high rate as a matter of pro- 
tection has been denied. 

By means of the high customs and excise duties the 
great debt of the civil war was so far reduced within the 
first decade that popular demands were made for a reduc- 
tion to the basis of revenue necessity. From 1872 to 
1896 the leading political issue between the dominant par- 
ties was based on the policies of "customs for revenue" 
and "customs for protection." That the plea for reduc- 
tion to revenue necessity has had a large following ap- 
pears from the fact that in every National election be- 
tween these dates the popular vote has been adverse to a 
protective tariff which exceeds the necessities of the Na- 
tional government for revenue. 60 Under our system of 
presidential elections, however, the revenue party has 
been successful twice only, and each time conditions have 
been such as to prejudice a permanent policy of customs 
reduction. 67 It is no part of this treatise to go into the 

66 Votes cast for President: 

1876. 1880. 1884. 1888. 1892. 

Democrat. . .*4,300,S90 *4,444,952 *4,874,986 *5. 540,3^9 *5. 556.543 
Republican.. .14,036,298 t4.454.416 14.851,981 t5,439>853 t5, 175.582 
Greenback.. t 81,737 t 308,578 

Ind. Dem t 175,370 

Union Labor t 146,935 

Populist $1,040,886 

*Tilden *Hanc'k *Clevel'd *Clevel'd *Clevel'd 
tHayes tGarfield 1'Blaine tHarrison tHarrison 
tCooper ^Weaver tButler JStreator tWeaver 
During this time the Democratic candidate received a plu- 
rality of votes in every election but one, that of 1880, in which 
the Republican candidate had a plurality of 9,464 votes, while 
General Weaver, the Greenback candidate, in the same election, 
received 308,578 votes, showing a large majority of the electors 
to be for tariff reduction. 

67 One of the causes which has operated to assist the ultra- 
protectionists has been the recurrence of panics and the con- 
sequent prostration of industry. The Cleveland administra- 
tions were associated with periods of industrial depression. 
This had the effect of raising up factions on the one hand and 
of furnishing a circumstance by which the demagogue and post 



RESULTS— IN LEGISLATION. ETC. 331 

merits of the claims of one party or the other. It is for 
us only to observe the attitude of parties and people to- 
ward this form of taxation. To this end it may be well 
to notice certain conditions which, according to the doc- 
trines advanced by both parties, require a modification of 
customs laws. 

During the last two decades a large number of the 
protected industries have become so highly developed 
that not only can they operate successfully without tariff 
protection, but the tariff having cut off competition from 
without, they themselves, by combination, have prevented 
competition from within; the result has been that, as to 
these industries, the very object of the protective tariff, 
aside from its revenue feature, has been lost to the coun- 
try at large, and as a revenue measure it is admittedly 
unjust. 68 By reason of the "trusts" organized under the 
protection of customs laws, the copper, lead, steel, nickel, 
coal, zinc products, in fact nearly all of the mineral 
products, have been controlled and the prices fixed by 
the trust managers at a rate just enough below the 

hoc reasoner could spin a web of sophistry to catch votes, 
on the other. If these had been the only times that depressions 
had occurred; if the great depression from '73-9 had not oc- 
curred in Republican administrations when the protective tariff 
had full sway, and if these depressions had not been world- 
wide, and been as severely felt in other lands where our tariff 
did not reach, in countries having high tariffs as well as those 
having free trade, the logic might have been more conclusive. 
Nevertheless such arguments have their influence. 

68 The theory on which the people have been induced to sup- 
port the protective tariff is, that by encouraging the develop- 
ment of home industries the country would finally be able to 
supply the home demand and then, by competition, the price 
would be reduced to its normal level; that, while they would 
for a time contribute to the upbuilding of the "infant industries," 
that these industries, having been put on a solid, self-support- 
ing basis, would finally be able to furnish goods at the same 
price for which they might be obtained from the foreign market; 
that at the same time the general industrial welfare would be 
conserved by their establishment; when, however, these estab- 
lishments have grown so strong that they can control the home 
market, the tariff then becomes a menace to the interests of 
those who have contributed to the upbuilding of these concerns. 



332 THE GROWTH OF DEMOCRACY. 

world's market plus the tariff, to enable them to take to 
themselves the fullest benefits of the monopoly and to 
deprive the consumers of a large part of the benefit of 
the industrial development which they have so long con- 
tributed to bring about. Every year the consumers are 
compelled to pay tribute to these "trusts" amounting to 
many times the sum of revenue derived by the govern- 
ment. 

The operation of the tariff law relative to articles con- 
trolled by trusts is well illustrated in the prices of copper 
and lead, shown on the page opposite. The lower solid 
black line represents the London price of these articles, 
the upper waved line* represents the London price plus 
the tariff rate, the dotted line represents the New York 
price. These are both commodities which are produced 
for export, our output far exceeding the home demand. 
On the principle of supply and demand, the theory 
on which the tariff on these articles was fixed, competi- 
tion being free, the market price in the United States 
would be the London price, less freight and other costs 
of transportation. The mines from which these re- 
sources are drawn, however, are controlled by syndicates, 
which regulate the output and price to suit themselves. 
The protective tariff on these articles, by cutting off for- 
eign competition, allows them so to do. The result is 
that a margin of tribute is drawn from the consumer. 
This margin is shown on the chart by the difference be- 
tween the lower solid black line and the upper dotted line, 
to which should also be added the cost of transportation. 
It will be noticed that in 1877-8 there was a great fall 
in the New York price of lead, and that in 1888 there 
was a remarkable rise in both the New York and the 
London prices of copper, the London price rising above 
that of New York. No better illustration of the effects 
of monopoly rule can be found. In 1877-8 the monop- 
oly in lead was interrupted, and in 1888 a French syndi- 





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334 , THE GROWTH OF DEMOCRACY. 

cate was formed which exercised the same influence on 
the foreign copper market that the American syndicate 
did on the home market. The result was that the price 
in the London market was at times higher than the price 
in New York, and the price level was raised the world 
over. But the French syndicate, after investing mil- 
lions in copper, without the aid of a tariff, found itself 
unable to maintain its monopoly; the world's supply was 
too great for them to control. The consequent fall of 
prices forced them to the wall. While the London price 
resumed its normal level, after the breaking down of the 
foreign monopoly, the American syndicate, protected by 
the tariff, was enabled to levy the same margin of tribute 
as before. These effects clearly appear in the chart. 

On investigation all of the American trust products 
will display the same result. The customs laws which 
secure these monopolies are most carefully guarded by 
those who enjoy them. Expensive lobbies are main- 
tained at the National capital. Those who advocate pro- 
tection to monopoly products and a continuance of these 
monopolies are well rewarded. Large sums for cam- 
paign purposes are placed at the disposal of the party 
managers and the best talent is employed to educate the 
popular mind — to convince the people that a maintenance 
of these tariffs is most beneficial. In order further to mis- 
lead the classes upon whom the heaviest burden of tribute 
falls the "politicians" and lobbyists have imposed high 
duties on imported agricultural produce. But, though 
these tariffs have been laid under conditions of produc- 
tion similar to those of the mineral products, 69 by reason 



GU That is, the United States produces for the world market 
in both cases. In both cases the home supply is greater than 
the home demand. In both the market for the surplus has been 
abroad. The only difference is found in the fact that the min- 
eral resources are such that they can be controlled by trust 
organizations, while the agricultural resources cannot be so 
controlled. 



RESULTS— IN LEGISLATION, ETC. 335 

of the inability of the agriculturalists to combine and 
form a monopoly, the result has been quite different. 
Instead of the American price of agricultural products 
being above that of the European market, as in case of 
the mineral products which are controlled by monopolies, 
instead of it approximating the foreign price plus the 
tariff, we find that the tariff on farm products has had 
little or no effect. The United States producing a sur- 
plus, the price by free competition being fixed by the 
world's market instead of being controlled by the trust 
managers, the price in the United States has been that 
of the world's market less freight charges, costs and 
profits of handling. This fact is shown by the charts of 
prices of wheat and cotton on the page following. The 
solid black line, as before, indicates the London price, 
the wave line the London price plus the tariff, and the 
dotted line the New York price. In case of wheat we 
have also added a starred line, indicating Chicago prices, 
for the purpose of showing that the price in both New 
York and Chicago has varied with the London price less 
freight rates, costs and profits of handling. 70 

The people in four National elections have shown their 
disapproval of such a policy. On two of these occasions 
the elections were so managed that the popular will was 
not impressed on the policy of the government. In the 
last election the tariff issue was so commingled with 
others that Congress was controlled by those who were 
well disposed toward these monopolies, and rates on mo- 
nopoly products, instead of being reduced or taken off, 
were raised to a higher level. Under the Dingley act 
a very large part of the "list" is made up of monopoly 
products, and the various trust organizations of the 
country have been given an increased margin of tribute. 

While customs duties laid on the basis of revenue 



70 The convergence in these lines shows the decreasing cost 
of transportation. 













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336 



RESULTS— IN LEGISLATION, ETC. 337 

necessity have always been supported by a majority of 
the people and while their imposition for purposes of pro- 
tection has always received well-merited support, yet the 
protection and encouragement of trade monopolies, the 
legalizing of a levy of tribute on the weak for the benefit 
of the strong, is supported by the principles of neither 
party, is undemocratic, unjust — a condition of things 
wholly incompatible with the maintenance of free institu- 
tions. 

These conditions cannot long exist. The people de- 
mand that taxation for the benefit of established monop- 
olies shall come to an end. Though this popular demand 
has heretofore been silenced by methods peculiar to the 
past, the nation is becoming so much alive to the situ- 
ation, so thoroughly convinced of the fact that a concern 
which has grown to such proportions that it is able to 
control the American market is not an "infant" which is 
entitled to protection, that the line is being clearly drawn 
between protection and monopoly. Issues of war, of 
constitutional reform, of currency, and other issues in- 
geniously presented by the managers may serve for a 
time to delay final judgment. But the day is not far 
distant when no political leader who expects a following 
will advocate tariff protection to industries which have 
assumed such proportions. Taxation for such purpose 
is not only in itself contrary to the underlying principles 
of democracy, it not being laid on the basis of ability to 
pay, but it also carries with it a form of tribute which can 
be supported only by the most arbitrary and absolute 
forms of government. The National necessity for rev- 
enue being such that a sufficient amount can be realized 
from other sources, customs duties have no just founda- 
tion except in so far as they may serve the general wel- 
fare by protecting "infant industries." As to tariffs for 
the protection of the products of monopolies and well- 
developed industries, both the economic interests of the 
22 



338 THE GROWTH OF DEMOCRACY. 

people and the announced principles of political parties 
demand that they be repealed, and that the revenues be 
raised either from luxuries or by direct taxation. 

In the States direct taxation is the form most generally 
employed. In the early colonial period this was not the 
case. At this time there were few public burdens in the 
form of taxes of any kind. The proprietary and colonial 
corporation derived their revenues from quit-rents, fines, 
fees, franchises, etc. It was only after the proprietary 
and the stock company had lost their monopoly in gov- 
ernment that, to any considerable extent, assessments 
were made. In the voluntary associations, however, di- 
rect taxes, laid on the basis of assessed valuation, are 
found almost from the beginning. The democratic the- 
ory of taxation according to ability obtained in Massa- 
chusetts at an early date. The laws of 1640, p. 56, recite: 

That the lands and estates of all men (wherein they 
dwell) shall be rated for all town charges. * * * For 
a more equal and ready way of raising means for defray- 
ing the public charges and for preventing such incon- 
veniences as have fallen upon former assessments, it is 
ordered * * * that the Treasurer (colonial) for the 
time being shall * * * send his warrants to the 
constables and selectmen of every Towne within this 
Jurisdiction, requiring the Constable to call together 
the Inhabitants of the Towne, who, being so assembled 
shall choose some one of their freemen * * * who, 
together with the Selectmen, for their prudential affairs 
shall * * * make a list of all the male persons in 
the same Towne from sixteen years old and upwards, 
and a true estimate of all personal and real estates 
* * * according to just valuation. 

This method of assessment was continued in the Mas- 
sachusetts colony, the tax being apportioned to the towns 
and the town selectmen and the constable fixing the rate 
according to the lists returned by the assessor. 71 Maine, 

71 The act of Feb. 20, 1786, directed the assessor to "assess 
the polls of and estates within such town or district, their due 



RESULTS— IN LEGISLATION, ETC. 339 

establishing a system of assessment and taxation, followed 
almost the exact language of the Massachusetts statutes. 
Connecticut, at an early date, employed the same plan, 
each statutory revision being a restatement with such 
modifications as appealed to the legislative body as being 
better adapted to the ends of equality and justice. The 
law of 1796, taken largely from the early laws, provided: 

All rates and taxes shall be granted by the General 
Court, and all other rates or taxes of counties, towns, 
societies or any community by law enabled to grant and 
levy taxes, shall be made by the same rule, that is to say, 
according and in proportion to the general list of polls 
and ratable estates from time to time given, and made 
according to law, except where another rule of granting 
and levying rates, taxes and assessments is by law pro- 
vided in any particular case or cases. 

In Rhode Island the principle of taxation by assessed 
valuation was well established by 1696, and was continued 
in the many revisions of the colonial period. 72 As stated 
in the law of 1798 : 73 

When any tax is ordered to be assessed and levied on 
the inhabitants of this State, or any estates within the 
same, the Secretary of the State for the time being, shall 
forthwith send a copy thereof unto each of the Town 
Clerks in the State, to be by them immediately delivered 
to the Assessors of the respective towns; and that the 
Assessors of each town shall assess and apportion the 
same upon the inhabitants of such town or the ratable 
estates of the same. * * * And the Assessors of 
each town * * * shall * * * set up three noti- 
fications under their hands, requiring the inhabitants of 

proportion of any tax," and provides to this end that the asses- 
sor "shall lodge in the said clerk's office the invoice and valua- 
tion, or a copy thereof, from whence the rates or assessments 
are made that the inhabitants or others rated may inspect the 
same." 

72 See Laws of 1696, 1702, 1744. 1747. 1755, J 757- 1758, 1761, 
1763, 1764, 1781, 1782, 1785, 1798. 

73 Laws 1798, p. 407. 



340 THE GROWTH OF DEMOCRACY. 

their towns to bring in to them in writing * * * an 
exact list of their ratable estate under oath. * * * 
That the Assessors shall, before they apportion the tax 
among the inhabitants, make a list containing the value 
of all such persons' estates according to the best judg- 
ment of the Assessors, on the inhabitants of such who 
neglect or refuse to give in an account thereof agreeable 
to law, and of the number of ratable polls, and deduct 
the sum that the polls will raise from the sum to be 
assessed and levied; and the Assessors shall cast the rata- 
ble estates, and thereby find out how much percenture 
it will be, and will apportion the tax accordingly. 
* * * That all town taxes shall be assessed, levied 
and collected in the same manner as the State are, or by 
this act ought to be. 

In 1796 Secretary of the Treasury Wolcott made an 
exhaustive report on the tax systems then in vogue in 
the several States. 74 From this it appears that in three 
of the States 75 taxes were laid ad valorem on the col- 
lective mass of property not exempt by law, at a uniform 
rate; and in one 76 taxes were assessed on the basis of the 
income derived from all sources. In the other States the 
properties subject to taxation were specifically named. 
In all of the States except two 77 land was taxed on some 
basis of valuation. 78 Horses and cattle were taxed in 
thirteen of the States. Many other objects are specifical- 



74 State Papers (Finance), Vol. I, p. 414, "Direct Taxes." 
73 Rhode Island, New York and Maryland. 

76 Delaware. 

77 South Carolina and Georgia. These States were largely 
controlled by an aristocracy, and it was of advantage to them 
to have all lands taxed equally. 

78 The taxes on land were laid on the basis of assessed valua- 
tion in Virginia, Maryland, Pennsylvania, New Jersey, New 
York and Rhode Island; in New Hampshire the value was 
determined for the purposes of taxation on the basis of rent; 
in Delaware on the basis of income; in Vermont, Kentucky 
and North Carolina the lands were classified on a basis of 
quality, and each class had a different rate; in Connecticut 
the valuation was estimated according to the use, as plough- 
land, meadowland, etc. 



RESULTS— IN LEGISLATION. ETC. 341 

ly named with considerable variation. There are some 
of these differences that may be attributable to institu- 
tional difference, for example: Slaves were taxed in all 
of the Southern, and in all but one 79 of the Middle, 
States. 80 Poll taxes are confined to the New England 
States, 81 with two exceptions. 82 Processes of law were 
taxed in the Southern States. 83 A tax on billiard tables 
was imposed in four of the Southern States. 84 Taxes on 
money were imposed in all of the New England States, 
but in none others. There are two other facts that seem 
to have arisen out of institutional differences, viz.: In 
all of those States which grew out of voluntary associa- 
tions the State taxes were apportioned to and assessed 
against the towns or other local administrative bodies as 
a unit; while in most of the other States — those having 
a proprietary or central corporate origin — the State gov- 
ernment levied the taxes directly against the persons 
or property within its jurisdiction. In those States where 
the taxes were laid against the towns or local bodies the 
assessors and collectors were elected by and made re- 
sponsible to the people, while in those having central 
administration, they were appointed by the county court, 
or commissions, the State Treasurer, the legislature or 



, ™ New York. 

80 In Delaware they were taxed only through the income. 

81 This may be accounted for on the theory prevailing that 
all, not paupers, should contribute something to the support 
of government; it may be accounted for on the ground that 
there was not such great disparity of classes in New England. 
When, however, there is inequality in wealth, poll taxes, if 
high, are very iniquitous. 

82 North Carolina and Georgia. In these States we have 
every reason to believe that poll taxes were laid in order that 
the large land holders might relieve themselves as far as pos- 
sible. 

83 This was probably a remnant of the proprietary and com- 
pany rule. 

84 This is one of the evidences of a wealthy, aristocratic, 
leisure class. 



342 THE GROWTH OF DEMOCRACY. 

the Governor. Those States which were most nearly in 
touch with the people were the first to adopt the prin- 
ciples of equality in taxation. Those which were founded 
on European models were the last to come to this basis. 
Some of the Southern States did not adopt the taxation 
of all property not specifically exempt by law till after 
the civil war. By the middle of the century, however, 
taxes laid on all property proportional to value, at a uni- 
form rate, became the rule. 

But with the multiplication of the forms of property 
the rule became difficult of administration. Many forms 
of personal property, such as franchises and corporate 
interests, could not well be valued, and other forms, such 
as securities, credit instruments, etc., were easily secreted. 
This has led to great confusion in the application of prin- 
ciples of justice and equality. As a consequence, at- 
tempts have been made, by special forms of taxation, to 
reach the end desired. 

One feature of the law, made possible by direct taxa- 
tion, however, is deserving of mention — that of the ex- 
emption of certain property from public burdens, in the 
interest of the general welfare. Among the first to be 
favored by exemption were properties used for religious 
and educational purposes. As democracy gained in po- 
litical power, as the protection of the weak against the 
strong, came to be recognized as one of the highest 
duties of the State, it became the settled policy of our 
government to so modify the established order that all 
might have the means for self-support and a sufficient 
competence to provide for the comfort and education of 
the family. This was deemed to be one of the first condi- 
tions of good citizenship, the necessary foundation of free 
government. Provisions for exemption of implements 
of trade and occupation are found in many of the old 
colonial laws. At the time of the formation of the Na- 
tional government the New England States generally ex- 



RESULTS— IN LEGISLATION, ETC. 343 

empteci implements, work horses, etc., from distraint in 
the collection of taxes. In Rhode Island household fur- 
niture, excepting plate, farming utensils, the tools of 
mechanics, and one-quarter part of property at sea, were 
exempt. In Vermont exemptions were made to persons 
disabled by sickness or infirmity. Lands planted or 
tilled for planting orchard trees were also exempt for ten 
years. In New Hampshire it was not lawful to take by 
distress the tools or implements necessary to trade or 
occupation, firearms or the necessary household furniture 
of the family. In Massachusetts it was unlawful to dis- 
train the tools or implements of a trade or occupation, 
beasts of the plow necessary for the cultivation of im- 
proved lands, arms, or the household utensils or apparel 
necessary for the family. Quite similar provisions are 
found in many of the other States. As the variety of 
property has increased and the standards of life have be- 
come higher, the exemptions have also in many States 
increased. The exemptions from taxation as they ap- 
pear are shown on the chart set forth in appendix IV, 
p. 526. Not only do these exemptions contribute to the 
general welfare by encouraging, saving and raising the 
standard of citizenship, but they also accord with the 
principle of payment according to ability, in that they 
tend to put the burden on surplus, over and above a 
competence for livelihood. 

3. INDEBTEDNESS.— The constitutions of most 
of the States provide that no town, county or municipal- 
ity shall give money or property to any corporation 
having for its object a dividend of profit. 85 Nor can it 



85 Ala., 1875, IV, 55; Ark., 1874, XII, 5; Cal., 1873, IV, 31; 
Colo., 1876, XI, 2; Conn., 1818, Am. 25; Fla., 1868, XII, 7; 
Ga., 1877, VII, 6; 111., 1870; Ind . 1851, X, 6; La., 1879, 56; 
Mo., 1875, IV, 47, XI, 6; Neb., 1875, XIV, 2; N. H., 1792, II, 5; 
N. J., 1844, I, Am. 19, 20; N. Y., 1846, VIII, 11; Ohio, 1851, 
VIII, 6; Ore., 1857, XI, 9; Penn., 1873, IX, 7: Tex., 1876, III, 
52, XI, 3; Wis., 1848, XI, 3. 



344 THE GROWTH OF DEMOCRACY. 

loan its money or credit to such corporations, 80 nor be- 
come security for them, 87 nor become a stockholder. 88 
In some the legislature cannot authorize them to do so. 89 
Specific limitations are placed on the power of the State 
to contract loans to meet deficits. 90 

As to other debts, many of the constitutions restrict 
the power to specific purposes. 01 In several of the 
States it is provided that no debt shall be contracted 
by the legislature unless authorized by a law which at 
the same time makes provision by taxation for its pay- 
ment, 92 thus at once fixing the responsibility. Many re- 
quire propositions for incurring indebtedness to be re- 
ferred to the people. 93 With all of these safeguards 
against involving the State in debt, our States and 
nation hold a unique position in that, in spite of misap- 
propriations and mismanagement they have been kept 
remarkably free from excessive burdens of debt, and 
have been most honorable in dealings with creditors. 
The people have not repudiated the debts incurred by 
public agents except in a very few instances where it 
has appeared to them that these agents have been most 
flagrant in their betrayal of public trust, where those 
who have received these obligations have had, or with 

86 Id.; also Ark., 1874. XVI. 1; Colo., 1876, XI, 1; Md., 1867, 
III, 54; Nev., 1864, VIII, 10; Tenn., 1870, II, 29. 

87 Cal., 1873, IV, 31; Colo., 1876, XI, 2; N. J., 1844. Am. 
19, 20; N. H., 1792, II, 5. 

88 Id.; also Neb., 1875, XII, 1; Colo., 1876, XI, 2. 

* 9 Cal., 1873, IV, 31; Ala., 1875, IV, 55; Ga., 1877, VII, 6; 
Fla., 1868. XII, 7; Mo., 1875, IV, 47; N. H., 1792, II, 5; Ohio, 
1851, VIII, 6; Tex., 1876, III, 52. 

9 "See Mich., 1850, XIV, 3; Wis., 1848, VIII, 6; Tex., 1876, 
III, 49; Mo., 1875, IV, 44; Cal., 1873, XVI, 1; Ky., 1850, II, 35; 
Ohio, VIII, 1; Kans., 1859, XI, 5. 

,J1 See Cal., 1873, XI, 3; Ga., 1877, VII, 12; Iowa, 1857, VII, 4; 
Kans., 1859, XI, 7; Me., IX, 15; Neb., 1878, XIV, 1; Ohio, 
1851, VIII, 2. 

92 See Kans., 1859, XI, 5-6; Minn., 1857, IX, 5; Md., 1867, 
III, 34; Mo., 1864, IX, 3; Ky., 1850, II, 36; HI., 1870, IV, 18. 

93 See Chapter X. 



RESULTS— IN LEGISLATION, ETC. 345 

the exercise of due diligence might have had, notice of 
the fraud, and in many instances have been participites 
criminis. In these very few cases repudiation of illegal 
and unauthorized acts was the only means of protection 
from spoliation. 94 

4. CORPORATIONS:— This form of industrial or- 
ganization has recently commanded attention by reason 
of the facility offered for centralizing power in the hands 
of a few which might be, and in many cases has been, 
used to the end of perverting the functions of government 
in the interests of its managers. Some of the most cor- 
rupt measures and rankest frauds have been perpetrated 
by these forceful combinations. A slight advantage 
gained over competitors by means of legislative grants 
and official acts is of such enormous economic import- 
ance to those procuring them as to make it an object at 
times to pay millions of dollars for these privileges. 
This has proven an inducement to corruption and a means 
of spoils such as could not be withstood while the power 
of making these grants or giving these advantages re- 
mained in the hands of the legislature. To cope with 

04 Four States have repudiated debts incurred by public agents 
in aid of private enterprises. Two of these (Florida and Mis- 
souri) had become thus involved during the speculative period 
prior to the panic of 1837; the funds had been used for private 
speculation and the interests of the people completely ignored. 
The other two (Minnesota and Michigan) had been involved 
in enterprises in which the despoilers had become enriched 
and the projects left in a bankrupt condition for the State to 
settle. In all of these there was at least a questionable use of 
power. The other States which have repudiated their debts 
were those which had been subjected to the tyranny of carpet- 
bag rule after the civil war. They had not only been held 
under the firm grasp of the national military organization 
during the period of reconstruction, but, while thus bound hand 
and foot, they had been ruthlessly plundered. It was on account 
of this subversion of the government, which had been taken 
out of the hands of the people and exercised by a band of 
unconscionable spoilsmen, that the people of these States, on 
recovering control, repudiated the acts of those who had been 
imposed upon them as governors, but whom they did not 
recognize as their political agents. 



346 THE GROWTH OF DEMOCRACY. 

this evil, constitutions have placed many restrictions on 
legislative power. Some have forbidden the granting of 
charters by special act; 95 others have made monopolies 
combinations and trusts unlawful. 

Owing to fraudulent and surreptitious acts on the part 
of capitalistic combinations, provisions have been 
adopted making such organizations the subject of public 
control to a much larger extent than other private con- 
cerns. In the first place, the time of charter grants has 
been very much reduced, the amount of capital stock 
limited, the liability of stockholders enlarged, limitations 
placed on their power to hold real estate; greater pub- 
licity has been given to these corporate affairs; special 
limitations have been made relative to banks and other 
financial institutions. Railways, canals and other cor- 
porate common carriers have been made the subject of 
special control. 

One of the fictions most favorable to corporations is 
that established in the Dartmouth College case, by virtue 
of which it became an established principle of our law 
that the charter of a private corporation was in the na- 
ture of a contract, and could not be impaired by the 
States. It then became of the utmost importance for the 
corporation to get from the agent of government a con- 
tract most favorable to themselves. 96 To overcome the 



95 Ala., 1875, XIV, 1; Ark., 1874, XII, 2; Cal., 1873, XII, 1; 
Colo., 1876, XV, 2; 111., 1870, XI, 1; Ind., 1851, XI. 13; la., 
1857, VIII, 1; Kan., 1859, XII, 1; La., 1879, 247; Me., 1820, 
IV, 3; Md., 1867, III, 48; Md., 1850, XV, 1; Minn., 1857, X,2; 
Mo., 1875, XII, 2; Neb., 187s, XIII, 1 ; Nev., 1864, VIII, 1; 
N. J., 1844, IV, 7; N. Y., 1846, VIII, 1: N. C, 1868, VIII, 1; 
Ohio, 1850, XIII, 1; Ore., 1857. XI, 2; Tenn., 1870, XI, 8; Tex., 
1876, XII, 1; W. Va., 1872, XI, 1; Wis., 1848, XI, 1. 

:I6 This is one of the principal reasons why it is unsafe to 
leave the granting of charters to special acts. When each vol- 
untary association must apply to the legislature separately there 
is every inducement for them to use all methods necessary to 
procure the powers and privileges desired for their special use. 
When they are given no opportunity to incorporate except under 
a general act applying to all corporations of the kind then the 



RESULTS— IN LEGISLATION, ETC. 347 

injury which such action would do to the public and at 
the same time not to violate the fundamental law of the 
land, our people have adopted such provisions as this: 
"All general laws and special acts * * * may be al- 
tered from time to time." But while the law might be 
repealed, charter privileges might still be claimed under 
the former law, therefore another step follows, as for 
example: "Corporations may be formed under general 
laws, which laws may from time to time be altered or 
repealed." "The general assembly shall have power to 
alter, revoke or annul any charter of incorporation now 
existing and revocable at the adoption of this constitu- 
tion, or any that may hereafter be created, whenever in 
their opinion it may be injurious to the citizens of this 
State, in such manner, however, that no injuries shall be 
done to the incorporators." Still this was found to be 
too unfavorable to the public, as any withdrawal of pow- 
ers or limitations must be compensated for, therefore 
a third step: "The general assembly shall by general 
laws provide for the revocation or forfeiture of the char- 
ters of all corporations guilty of abuse or misuse of 
their corporate powers, privileges and franchises, or 
whenever said corporations become detrimental to the 
interest and welfare of the commonwealth or its citizens." 
This may be considered the most advanced step in the 
direction of control of corporations and of protecting the 
people against the bribery of legislatures and the pro- 
curement of franchises unfavorable to the interests of 
the public. Every subsequent legislature may revoke 
the charters granted by former ones, and therefore con- 
stitute a complete check. This provision does not vio- 
late the principles of contract, as the law is a part of 

inducement is reduced to a minimum. The history of banking 
furnishes a good example of this. Under the regime of special 
charters the banks were constantly employing corrupt means of 
procuring their charters. Under the "general law" this is 
avoided. 



348 THE GROWTH OF DEMOCRACY. 

every contract and when the constitutions have made a 
provision of this kind it becomes a part of the contract by 
which the grant is made. 

5. SPECIAL, LOCAL AND PRIVATE LAWS:— 
One of the most fruitful instruments of public plunder 
employed immediately after the formation of our govern- 
ment was that of special, local and private legislation. 
In the first place it is adverse to the theory of the separa- 
tion of powers on which our governmental system is 
based. It places in the hands of the legislature a power 
relative to special matters that should be left to execu- 
tive and administrative discretion, exercised under gen- 
eral law. Legislation must of necessity, when confined 
within its proper sphere, make general rules for the gov- 
ernment of society ; otherwise it must be inequitable and 
involve the members of society in uncertainty and inter- 
minable conflict. In the second place special lgislation, 
being administrative in its nature, i. e., it being an exer- 
cise of discretion relative to particular cases, puts into 
the hands of the legislature the power both of making 
the law and applying it to the special case. The break- 
ing clown of the check established by the separation of 
powers requiring that administrative discretion be exer- 
cised under rules of law, opens up one of the broadest 
avenues to corruption and misuse known to government. 

But special legislation in some cases is found most 
wholesome, as in making up the annual budget and 
passing it, supplying special rules of action when no 
general rules can be applied, giving special relief, secur- 
ing defective tax titles, etc., and therefore, in order to 
give the government the benefit of special legislation in 
such matters as might seem to be wholesome, a plan 
has been gradually evolved whereby constitutional prohi- 
bitions of its use have been made special. That is, instead 
of prohibiting all special legislation, it has been prohib- 



RESULTS— IN LEGISLATION, ETC. 349 

ited in the exercise of such legislative powers as seem 
to the best interest of the State. The specific constitu- 
tional limitations on special legislation adopted in the 
various States are about seventy, and include nearly all 
of the subjects in which the power of special legislation 
is the subject of abuse. The special prohibitions may be 
classified as follows: 

As to corporations: — (i) The granting to any person 
or corporation of any exclusive privilege, immunity or 
franchise (except municipal franchises in some States), 
(2) granting to any person or corporation the right to 
lay down railroad tracks, (3) providing for the charter- 
ing of bridge companies, except as regards certain 
bridges across streams at boundaries of States, (4) char- 
tering or licensing ferries, (5) chartering or licensing 
turnpike companies, (6) incorporating railroads, (7) in- 
corporating other works of internal improvement, (8) 
creating incorporations, (9) amending, renewing, ex- 
tending or explaining the charters of corporations, (10) 
authorizing the construction of street railways, (11) creat- 
ing banks. 

As to private rights and remedies: — (1) Giving effect 
to informal and invalid wills, (2) changing the law of 
descent, (3) legitimating children not born of lawful wed- 
lock, (4) adopting any person, or constituting any per- 
son the heir of another, (5) changing the name of any 
person, (6) declaring any person of age, (7) granting di- 
vorces, (8) authorizing or providing for sale and convey- 
ance of real estate, (9) providing for conveyance of 
property of persons under disability, (10) effecting the 
estates of minors, (11) providing for the sale of church 
property or property held for charitable purposes, (12) 
authorizing deeds to be made for land sold for taxes, 

(13) prescribing the effect of judicial sales of real estate, 

(14) relating to interest on money, (15) authorizing the 
creation, extension or impairing of liens, (16) providing 



350 THE GROWTH OF DEMOCRACY. 

for the method of collecting debts or enforcing judg- 
ments, (17) releasing persons for debt due to inhabitants 
or corporations. 

As to the exercise of the police power: — (1) Relating 
to cemeteries, grave-yards, or public grounds not be- 
longing to the State, (2) regulating trade, (3) regulating 
manufacture, (4) regulating labor, (5) protecting fish and 
game, (6) regulating agriculture. 

As to public improvements: — (1) Laying out and 
opening of highways, (2) vacating roads, streets, plats 
and public squares, (3) providing for building bridges, 
(4) locating and changing the location of county seats. 

As to political organizations and the exercise of official 
power: — (1) Erecting new townships or counties, (2) 
changing county lines, (3) incorporating cities and 
towns, (4) amending the charters thereof, (5) regulating 
the affairs of county and township officers, (6) regulat- 
ing the affairs of municipalities, (7) providing for the 
management of common schools, (8) creating offices and 
prescribing the duties of municipal officers, (9) relating 
to the salaries and fees of officers, (10) authorizing extra 
compensation for officer, agent or contractor after ser- 
vice rendered, (11) creating or altering fees or salaries 
during term of officers, (12) regulating the jurisdiction, 
fees, powers or duties of aldermen, justices of the peace, 
constables, etc., (13) legalizing the unauthorized acts of 
officers, (14) restoring to citizenship persons disqualified 
for conviction of crime, (15) relieving the assessor or col- 
lector of taxes from performance of duty and his sureties 
from liability. 

As to judicature: — (1) Selecting or impaneling a jury, 
(2) laws for punishing crimes or misdemeanors, (3) par- 
doning or commuting sentence, (4) remitting fines, for- 
feitures or penalties, (5) regulating the practice of courts, 
(6) establishing their jurisdiction, (7) providing for 



RESULTS— IN LEGISLATION, ETC. 351 

change of venue, (8) changing the rules of evidence, (9) 
prescribing limitations to actions. 

As to finance: — (1) Providing for the bonding of cities 
and towns, (2) providing for the assessment or collection 
of taxes, (3) exempting persons or property from taxa- 
tion, (4) providing for the support of common schools, 

(5) providing for the apportionment of the school fund, 

(6) extending the time for the collection of taxes, (7) re- 
funding money paid to the State, (8) releasing persons 
for debts due to the State or any municipality. 

As to elections: — (1) Regulating general elections, (2) 
regulating elections of county or township officers, (3) 
providing for election of board of supervisors, (4) open- 
ing and conducting elections or designating places of 
voting. 

In no State do all of these prohibitions against special 
legislation specifically appear, but it is a significant fact, 
indicative of the progress of our institutions, that, where- 
as the first constitutions contained few or no limitations 
of this kind, the later ones have constantly enlarged their 
enumerations till a few contain as many as forty distinct 
prohibitions against special legislation. Some, indeed, 
have gone further than it is possible to do by specific 
enumeration alone, adopting a general provision, as in 
Kansas: "All laws of a general nature shall have a uni- 
form operation throughout the State, and in all cases 
where a general law can be made applicable, no special 
law shall be enacted," or as in Montana, after especially 
enumerating thirty-six prohibitions, adding, "In all 
other cases where a general law can be made applicable, 
no special law shall be enacted," and when such pro- 
vision has been made it has been held that the courts may 
adjudicate the question as to whether the subject is one 
"where a general law can be made applicable," even 
though the legislature has decided that it is not. 



352 THE GROWTH OF DEMOCRACY. 



CHAPTER XIV. 

MODIFICATIONS OF LAW AS A RESULT OF POPU- 
LAR CO-OPERATION (3) RELATIVE TO CER- 
TAIN SUBJECTS OF PRIVATE LAW. 

We have traced the evolution of Public Law as a result 
of popular co-operation in government. We will now 
turn our attention to the modifications of Private Law 
to the same end. It being impossible at this time to go 
over the whole field we will confine investigation to those 
subjects which seem most closely related to the growth 
of democracy, viz.: Capital and Labor, and Debtor and 
Creditor. 

I. 

CAPITAL AND LABOR. 

Law being conceived of as the habitual or established 
order of things, the recognized mode or method of ac- 
tion, or, in the last analysis, as an habitual method of 
thought, it follows that a statute is merely an authorita- 
tive expression or formulation of that common method. 
A law therefore cannot be the spontaneous generation of 
a moment; it must be the result of a long continued 
evolution. The minds of the various members of the 
political State in which the law is established must be 
similarly affected; the method must become common be- 
fore the establishment is possible. Environment, re- 
flecting itself upon the minds of the individuals of so- 
ciety, is again reflected back in a common expression; 
this is called legislation. A comprehensive view of the 
evolution of laws in the United States relative to capital 



RESULTS— IN PRIVATE LAW. 353 

and labor, therefore, suggests the propriety of a few 
observations concerning the environment of the early 
colonists, the laws and institutions of the land in which 
they had lived. 

We find that the English social environment had been 
one in which the laborer was looked upon as the very 
lowest stratum of society. The famous statute of 22 
Edward III., 1349 — which declared that every person 
who was under the age of sixty years, and who did not 
have the means to live, should, on being required, "be 
bound to serve him that doth require him," which fixed 
the scale of wages and declared that no higher wages 
should be paid under penalty — the Elizabethan statutes 
(5 Eliz., ch. 4, et seq.) — which provided that all persons 
able to work, not having independent means, could be 
compelled to go into agricultural employment, and which 
provided further that the justices of each locality should, 
from time to time, call in "such discreet and grave men 
a.-, they shall think meet," and after conferring together 
concerning the "plenty and scarcity of the time" should 
fix the wages of the various classes of laborers, a viola- 
tion of which would entail severe punishment — these 
provisions were only the reflection of a common method 
of thought, common principles, which were embodied in 
the legislation of England down to 18 13, and which, in 
fact, were not wholly erased from their legal system until 
1875, — 38 and 39 Victoria, ch. 86. 1 If a laborer left 
his employment he might be imprisoned, while the mas- 
ter, wrongfully dismissing his servant, was liable to a 
fine only. In case of breach of contract the remedy 
against the master was civil, while that against the ser- 
vant was criminal. 

Chafing under these unjust restrictions on their free- 
dom of action, English laborers early showed signs of 



1 For tabular statements of wages fixed by law and the jus- 
tices see Appendix IV. 
23 



354 THE GROWTH OF DEMOCRACY. 

discontent. 2 Their discontent found expression in or- 
ganizations, petitions, and at times in revolution. But so 
thoroughly was the idea of the inferiority of the laborer 
implanted in English thought that even during that period 
of religious and political agitation known as the Refor- 
mation he was scarcely regarded as having rights or 
liberties in common with other classes of society. Any 
agitation on the part of the laborer was regarded by so- 
ciety as directed against the peace and general welfare. 
Organization, even for mutual aid and protection, was 
made unlawful; combinations for the purpose of raising 
wages were held to be conspiracy; severe penalties were 
inflicted and large rewards offered for discovery. 3 Jus- 



2 Wells, in his History of Trade Unionism, p. 3, quoting from 
Clode's History of the Merchant Tailor's Company, Vol. I, 
p. 63: "In 1845 the tailors' 'serving-men and journey-men' in 
London have to be forbidden to dwell apart from their masters, 
as they hold assemblies and have formed a kind of associa- 
tion," and from Letters and Papers, Foreign and Domestic, 
Henry VIII, Vol. XIII, Part I, 1538, No. 1454. p. 537, "In 
1538 the Bishop of Ely reports to Cromwell that twenty-one 
journey-men shoemakers of Weisbach had assembled on a hill 
without the town, and sent three of their number to summon 
all master shoemakers to meet them, in order to insist upon 
an advance of their wages, threatening that "there shall none 
come into the town to serve for that wages within a twelve- 
month and a day." 

:i 1548 — 2 and 3 Edward VI, Ch. 15: "And likewise artificers 
and the craftsmen and laborers have made conspiracies and 
promises and have sworn mutual oaths, not only that they 
should not meddle with one another's work and perform and 
finish that another hath begun, but also to constitute and 
appoint how much work they shall do in a day, and what hours 
and times they shall work, contrary to the laws and statutes 
of the realm, and to the great hurt and impoverishment of 
the King's Majesty's subjects, for reformation whereof it is 
ordained and enacted by the King our sovereign lord, * * * 
if any artificers, workmen or laborers do conspire, covenant 
or promise together, or make any oaths that they shall not 
make or do any works but at a certain price or rate, or shall 
not enterprise or take upon them to finish that another hath 
begun, or shall do but a certain work in a day, or shall not 
work but at certain hours and times, that then every person 
so conspiring, covenanting, swearing or offending, being law- 
fully convicted thereof, * * * shall forfeit for the first offense 
ten pounds to the King's Highness; and if he have sufficient 



RESULTS— IN PRIVATE LAW. 355 

tin McCarthy, in his History of Our Own Times, speak- 
ing of the legal status of the laborer, says: 

Down to 1825 a mere combination of workmen for 
their own protection was unlawful, but long after 1825 
the law continued to deal very harshly with what was 
called conspiracy among workingmen for trade purposes. 
The very laws which did this were a survival of the legis- 
lation which for centuries had compelled a man to work 
for whosoever chose to call him, and either fixed his 
maximum of wages or left it to be fixed by the justices. 4 
* * * If he thought his wages ought to be raised 
or ought not to be lowered a court of law could not 
assist him. Once it would have compelled him to take 
what was offered and work for it or go to prison. Now, 
in better times, it would offer him no protection against 
the most arbitrary conduct on the part of an employer. 
He was admonished that he must not combine to fix the 
price of labor, * * * yet he knew very well that in 
many trades the masters did, by association among them- 
selves, fix the price of labor. He knew that there were 
associations of employers which held meetings at regular 
periods for the purpose of agreeing as to the wages they 
would pay to workingmen. He failed to see why he 



to pay the same, and do also pay the same within six days 
after conviction; or else shall suffer for the same offense twenty 
days' imprisonment and shall only have bread and water for his 
sustenance; and for the second offense shall forfeit twenty 
pounds to the King * * * or else suffer for the second 
offense punishment of the pillory; and for the third offense 
shall forfeit forty pounds to the King * * * or else shall sit 
on the pillory and loose one of his ears, and shall at all times 
thereafter be as a man infamous, and his saying, depositions 
or oath not to be credited at any time in any matter of judg- 
ment." 

Other statutes of similar import: 7 George I, Ch. 13, 1721; 
36 George III, Ch. 3, 1796; 39 George III, Ch. 81, 1799; 40 
George III, Ch. 106, 1800. 

39 George III, Ch. 81, made all contracts of this kind unlaw- 
ful; all persons connected therewith subject to confinement 
in jail, not exceeding two months; all persons entering into 
a combination to prevent others from hiring or to induce them 
10 quit, confinement for two months; all persons attending 
meetings or who shall contribute to the expenses incurred for 
acting contrary to the statute, three months' confinement. 

4 History of Our Own Times, II, p. 395. 



356 THE GROWTH OF DEMOCRACY. 

and his fellows should not come to a common resolution 
as to the wages they would accept. 5 

The revolting tyrannies which this system encouraged 
and allowed cannot be better illustrated than by the his- 
torical record of practices in certain mines where, upon 
investigation, it was found that many whole families 
were kept constantly underground to save housing, and 
in coal mines where seams were narrow, in order to save 
excavation, low trams were drawn by women half-clad 
or naked a long ways so low that they were compelled 
to work in a harness upon their hands and knees. 

The effect of such legislation and a social system which 
held service and labor as a badge of ignominy, the 
laborer as not entitled to the ordinary humanities which 
divided society into orders and castes, and of these held 
the producers of wealth the lowest, is to be seen in our 
colonial legislation. Restrictions and prohibitions of 
every imaginable kind were indulged in. In Virginia 
a man-servant marrying without the consent of his mas- 
ter must serve one year, a maid-servant double her time, 
and a freeman not only double his time, but pay a fine of 
five hundred pounds of tobacco." Runaways were 
bound to serve twice the time absent for first offense 
and be branded with the letter "R" for the second. 7 
Dealings with servants "for any commodity whatsoever 
without the consent of the master" were punishable by 
fine and imprisonment. — Laws 1657. Corporal punish- 
ments were allowed to be administered with the injunc- 
tion, however, that the master "neither shall at any time 
whip a Christian white servant naked without an order 
from the justice of the peace." 8 We are left to conjecture 
to what extent it might be indulged when the servant did 
not happen to be a white Christian or naked. Resist- 



ed., p. 400. 7 Laws 1642. 

6 Laws 1642 and 1657. 8 Laws 1705. 



RESULTS— IN PRIVATE LAW. 357 

ing a master was punishable by an added service of two 
years. 9 

In Massachusetts the law provided that a servant 
maimed or mutilated by a master, except by accident, 
should go free. In 1661 a law was enacted in Virginia 
which reads in part as follows: "Whereas the private 
burial of servants and others give occasion for much 
scandal against divers persons * * * of being guilty 
of theur death * * * by reason they are for the 
most part buried without the knowledge or view of any 
others than such of the family as by nearnesse or rela- 
tion (as being husband, wife or children are unwilling) 
or as servants are fearful, to make discovery if murder 
were committed, for remedy whereof, as alsoe for taking 
away the barbarous custom of exposing the corps of 
the dead (by making their graves in common and tin- 
fenced places) to the prey of hoggs and other vermine, 
be it enacted," etc., providing for burial in certain places 
and in public, and again in 1662, "whereas, if a woman 
got with child by her master should be freed from ser- 
vice it might induce all loose persons to lay all of their 
bastards to their masters, be it enacted that each woman 
got with child by her master shall be sold for two years 
and the tobacco (money) be imployed by the vestry." 
In Massachusetts (1662) servants were restricted and 
prescribed as to their apparel and, in 1698, prohibited 
the privileges of a public house. This short digest is 
given to show something of the legal and social status 
of labor at the beginning of our history. 

The restrictions on wages may be shown by references 
to the laws of the various colonies. The Laws of Massa- 
chusetts (1630, 33, 35, 36, 41) provided that wages should 
be fixed by the town and that all laborers and servants 
should be bound thereby. The Plymouth colony (1638) 

9 Laws 1761. 



358 THE GROWTH OF DEMOCRACY. 

enacted that "a laborer shall have twelve pence a day 
and his dyett, or eighteen pence a day without dyett, and 
not above, throughout the govern't." The Massachu- 
setts Bay colony (1633) provided that carpenters, saw- 
yers, masons, bricklayers, tilers, joiners, wheelwrights, 
mowers and other laborers should have two shillings 
without board, or fourteen pence with board, and that 
the constable, together with two others, were to fix the 
price of inferior laborers. We will not detail the restric- 
tions imposed by Virginia and the other colonies. Suf- 
fice to say that three important steps in the evolution of 
our laws effecting the social and legal status of the 
laborer may be attributed to the colonial period. In the 
first place, villenage and serfdom had never been estab- 
lished. The laborer and servant was not bound to the 
soil or affixed to the estate of his master. Even after 
slavery was introduced the slave was not an appurtenance 
to real property; he was regarded rather as a member of 
the familia, using the Roman concept. In the second 
place, the restrictions on freedom of contract were grad- 
ually removed. In the third place, the remedy of the 
master for breach of contract was restricted to civil judg- 
ment. 10 



10 Three States have subsequently extended criminal remedy 
to breach of contract. Louisiana, Laws 1890, Ch. 138, Sec. 1 ; 
Arkansas, Statutes, Sec. 4790; Tennessee, Statutes, Sec. 3438. 
But these measures have clearly arisen out of the degrading 
influence of slavery. Something approaching the re-establish- 
ment of the ancient practice, and, perhaps, upon still more 
questionable ground, may be found in the recent employment 
of writs of injunction sustained by Judge Ross in Southern 
California Ry. vs. Rutherford, 62 Fed. R., 796. 

Another advance may be attributed to the Colonial period 
in the removal of restrictions upon freedom of association and 
combinations for the mutual advantage of those combining, al- 
though freedom of association was not fully established until 
about eighty years afterwards; some of the courts, relying 
upon English precedents, based on the English laws making 
associations of labor illegal— had held labor combines to secure 
higher wages and plan strikes, illegal and conspiracy. Stim- 
son, in his Hand Book of Labor Laws, p. 202, speaking of the 



RESULTS— IN PRIVATE LAW. 359 

The very fact that the first colonists attempted to man- 
age their concerns on a co-operative basis is indicative of 
their high regard for the common industrial welfare. Al- 
though they had brought with them feudal ideals and 
feudal institutions, they were compelled by economic 
conditions to throw off the artificial environment of class 
and caste. Common perils and common interests fur- 
nished a common bond of sympathy, placed them upon a 
higher moral plane and cultivated a more lofty regard for 
human rights. This new environment gradually modi- 
fied their institutions and before the war of the revolution 
the laws restricting freedom of contract and freedom of 
association had vanished. 

The evolution up to this point may be regarded as 
negative — consisting of a removal of restraints. Funda- 
mentally, however, it was positive; it established equity 
between employer and employee, master and servant, and 
placed the capitalist, the undertaker 11 and the laborer 
upon the same level. Had not society become more 
highly differentiated in its industrial structure, had the 
relation of master and servant retained its ancient sim- 
plicity, had agricultural pursuits remained the chief oc- 
cupation and manufacture continued to be carried on by 



Journey-man Tailors' case, says: "It was followed in three 
early cases, happening respectively in Philadelphia in 1806, 
in New York in 1809, and in Pittsburg in 1815. All decided, 
however, in inferior courts." The principle was finally settled 
in Commonwealth v. Hunt, 4 Met. (Mass.), ill, in 1842, and 
in Master Stevedores v. Walsh, 2 Daly (N. Y.), 1, in 1867, 
when these courts held that a combination of laborers to raise 
wages was not legal and that laborers had a right to leave their 
work or combine at any time for a lawful purpose, such as 
to raise their wages. This doctrine, established in the cases 
named, was regarded as the settled law in the United States 
till the interstate commerce law was enacted in 1887, when this, 
together with the Anti-Trust laws of 1890 and the practice 
growing out of the appointment of receivers for corporations, 
modified the doctrine to some extent. 

# ai The capitalist and the undertaker had not been clearly dis- 
tinguished in their industrial functions at this time. 



360 THE GROWTH OF DEMOCRACY. 

small industrial groups, it is highly probable that society 
would have recognized no necessity for positive legisla- 
tion for the protection of labor. But the web and woof 
of the industrial fabric gradually changed; in place of 
the small industrial group was introduced the factory ; in 
place of hand labor, massive machinery. The capitalist, 
the laborer, the undertaker each assumed separate and 
distinct functions. Labor and capital were separated; 
the entrepreneur stood between and in command of both. 
In the hands of the undertaker materials, capital and 
labor were only elements to be combined in the most ef- 
fective manner, i. e., to the greatest profit of the under- 
taker, and the corporation was found a most useful insti- 
tution for bringing all of these elements into the most 
economic relations. 'Now we have a completely changed 
environment developed by society in its industrial ac- 
tivities, the reflection of which in our laws, during the 
National period, it is our present purpose to trace. 

The right of freedom of contract, so far as developed 
during the colonial period, was a common-law right, ex- 
tending to contracts which were neither immoral nor 
criminal nor prohibited by statute. As the statutory re- 
strictions were gradually removed, the common law prin- 
ciple was extended in its operation, subject, however, to 
statutory enactment. 12 

12 Many of our courts have held this, the right of freedom 
of contract, to be inalienable. They have regarded it as a part 
of the English constitution and therefore, being constitutional, 
unless either expressly withheld by the constitutions or ex- 
pressly placed in the hands of the legislature, not the subject 
of ordinary legislation. The authorities holding this view have 
been collected by Mr. Stimson on page 4, Hand Book of Labor 
Laws. Other courts and authorities hold that the State legis- 
latures are only limited by the constitutions of the State and 
the United States. (Id., pp. 4 and 5.) This latter position 
seems the more tenable from the fact that in the colonies, prior 
to our adoption of our national and State constitutions, and in 
England the right to freedom of contract had been frequently 
abridged by legislation. Even when regarded as constitutional 
it must be held a part of the unwritten constitution, and this 
always gives way to the written formulations. 



RESULTS— IN PRIVATE LAW. 361 

After the adoption of our constitutions the courts con- 
strued "the right to acquire, possess and protect prop- 
erty" guaranteed by many of the State constitutions, and 
the provision "that no person shall be deprived of life, 
liberty or property except by due process of law" to imply 
the right to make reasonable contracts and that this right 
could not be taken away by the legislatures. 13 These 
constitutional provisions being so construed, we will re- 
gard them as the first step by way of positive legislation 
in establishing the relations between capital and labor 
after the attainment of our independence. 

Immediately following this, the National government 
initiated a series of tariff enactments which, though not 
at all times designed for this purpose, have served to pro- 
tect the laborer as well as the manufacturer against un- 
favorable foreign competition. 

The third step in advance immediately followed, in- 
troductory to our laws securing payment for wages, viz., 
a statute providing for mechanics' liens. As to the his- 
tory of this class of legislation, we quote from Phillips on 
Mechanics' Liens. 14 

The lien of mechanics on buildings and the land upon 
which they were erected as security for the amount due 
them for work * * * is the "creation of statute" 
and was unknown either at common law or in equity 
* * * none were ever known or to this day are found 
upon the statute books of Great Britain, securing in any 
manner to the mechanic a lien on the buildings their in- 
dustry * * * has contributed to erect. 

The first attempt to create a mechanic's lien arose from 
a desire to establish and improve as speedily as possible 
the city of Washington as the permanent seat of govern- 
ment of the United States. At a meeting of the com- 
mission for that purpose. Sept. 8, 1791, * * * a 
memorial was adopted urging the general assembly of 



13 There is no express provision in our constitutions as to 
"freedom of contract." 

14 See Sees. 1, 7. 



362 THE GROWTH OF DEMOCRACY. 

Maryland to pass an act securing to master builders a 
lien on houses erected and land occupied, which was, 
during the same year followed by the passage of a law 
as requested. * * * The next statute on the subject 
was passed by the legislature of Pennsylvania in the year 
1803. These statutes, while they contained the germ of 
subsequent legislation on the subject, are imperfect and 
meager in comparison with the state of the law at the 
present time. The whole subject has been one of gradual 
growth extending from the imperfect and limited enact- 
ments * * * to the established policy of all the 
States. 

Our free school system had also become a medium for 
the education of the masses, and, though we may not 
class these acts as distinctly labor laws, yet they have 
played a very important part in the evolution under con- 
sideration. With higher education and a higher regard 
for the laborer, both social and political, the oppressive 
length of working hours was next brought to the minds 
of legislators. The laborer demanded that the hours of 
labor be so reduced that his might not be entirely a life 
of drudgery, and that he might have time for recreation 
and refinement. This agitation inaugurated the fourth 
step in the course of labor legislation. Beginning early 
in the century, it did not receive the sanction of govern- 
ment till 1840, when President Van Buren issued his 
order "that all public establishments will hereafter be 
regulated as to working hours by the ten-hour system." 
The first legislative act upon the subject was passed in 
1866 by the legislature of Massachusetts, which only lim- 
ited the hours of labor of minors in manufacturing es- 
tablishments and made provision for their education. 

Although until within the last twenty years very little, 
besides that already mentioned, was accomplished along 
the line of labor legislation, and of this by far the greater 
part was enacted within the last ten, yet with free schools, 
freedom of contract, freedom of association, protection 



RESULTS— IN PRIVATE LAW. 363 

from unfavorable competition and security for wages in 
the product of toil, as fundamental principles established 
at the very inception of our government, with the en- 
largement of electoral privileges, making the laborer the 
controlling political factor, with a decrease in the hours 
of toil, both by voluntary agreement and by act of gov- 
ernment, the United States has reared upon this founda- 
tion a superstructure which has not only led to better 
and more favorable consideration of the toiler in other 
lands, but which stands as a monument to the true great- 
ness of democratic government. Our laws decreasing 
the time of service, protecting labor against unfavorable 
competition and against intimidation, providing for the 
security and payment of wages, relating to the health 
and well-being of employees and providing for their 
safety and education have been the special subject of re- 
cent legislation. 

The laws decreasing the time of service may be re- 
garded as of three classes, viz., those shortening the 
hours of labor per day, those increasing the number of 
holidays, those relative to Sunday observance. 15 We 
have four National holidays: New Year's day, Inde- 
pendence day, Thanksgiving day and Christmas. The 
various State legislatures have very generally recog- 
nized Washington's birthday and Lincoln's birthday; 
Arbor day is celebrated by many; others make special 
provisions for a whole or partial holiday on election day, 
and in twenty-one of the States a special day has been set 
apart as Labor day, which is devoted to a consideration 
of the interests of labor. 16 



15 There may be some question as to the evolution of the 
Sunday laws. About forty States at present have laws making 
Sunday labor punishable. Whatever be the motive or ten- 
dency, it cannot be denied that the legal requirements, as well 
as the customary observance, has had much to do with the 
condition of the laboring classes. 

1G Those recognizing Labor day are as follows: Ala., Colo., 
Conn., Del., Fla., Ga., la., Mass., Minn., Neb., N. H., N. J., 
N. Y., Ohio, Ore., Penn., R. I., S. C, Tex., Utah, Wash. 



364 THE GROWTH OF DEMOCRACY. 

The laws shortening the hours of labor per day may 
be classified as those applying to male adults, those ap- 
plying to women and those applying to minors and 
children. Those applying to male adults establish the 
legal day of labor, in absence of a contract to the con- 
trary, 17 at ten hours in five of the States and at eight in 
six others in private occupations, except agricultural and 
domestic, while in public employment the eight-hour sys- 
tem has been established in nine and the nine-hour sys- 
tem in two. There are twelve States having laws re- 
stricting the hours of labor for adult women, twenty-two 
restricting the hours of labor for minors and children in 
factories, and sixteen making like provision as to mines. 

We find no less than six classes of legislative acts de- 
signed to protect laborers against unfavorable compe- 
tition besides the tariff acts already mentioned. Our 
National legislature has passed laws prohibiting pauper 
and criminal immigration, the importation of foreign 
contract labor, and an anti-Chinese law; and a political 
movement is now on foot still further to restrict immi- 
gration of a dangerous or unfavorable class. 18 The va- 



17 Some of the laws have made the legal day of labor abso- 
lute, but such laws have usually been held unconstitutional. 

ls The acts of Feb. 19, 1862, Feb. 9, 1869, and March 3, 1875, 
were directed against the "cooly" labor from China and Japan 
and against contract labor. The act of Aug. 3, 1882, provided for 
the inspection of vessels, and, further, that "if on such examina- 
tion there should be found among such passengers any convict, 
lunatic, idiot, or any person unable to take care of himself or 
herself without becoming a charge they shall report the same 
to the collector of such port and the person shall not be per- 
mitted to land." 

July 5, 1884, after a violent political agitation on the west 
coast, an act was passed prohibiting the landing or immigra- 
tion of Chinese laborers for ten years. Feb. 26, 1885 — 2^ Stat. 
L., p. 2>2> 2 — an act was passed which provided that "from and 
after the passage of this act it shall be unlawful for any person, 
company, partnership or corporation, in any manner whatso- 
ever, to prepay the transportation, or in any manner assist 
or encourage the importation or immigration of any alien 
or aliens, any foreigner or foreigners, into the United States, its 
Territories or the District of Columbia, under contract or 



RESULTS— IN PRIVATE LAW. 365 

rious State legislatures, acting within their scope of the 
problem, have taken up the subject of local protection. 
The laws relating to convict labor, although of the great- 
est variety, have a very marked tendency in this direction. 
In many of the States the contract system is prohibited. 19 

agreement, parol or special, express or implied, made previous 
to the importation or immigration of such alien or aliens, for- 
eigner or foreigners, to perform labor of any kind in the 
United States, its Territories or the District of Columbia," and 
made all contracts of this kind void. 

Nov. 3, 1891 — 26 Stat. L., 1084 — "That the following class of 
aliens shall be excluded from admission into the United States 
in accordance with the existing acts regulating immigration 
other than those concerning Chinese laborers: All idiots, 
insane persons, paupers or persons likely to become a public 
charge, etc.," and in Sec. 3, "That it shall be deemed a viola- 
tion of said act of February 26th, 1885, to assist or encourage 
the importation or immigration of any alien by any promise 
of employment through advertisements, printed or published in 
any foreign country, and any alien coming to this country in 
consequence of such an advertisement shall be treated as com- 
ing under a contract as contemplated in said act." 

To facilitate the enforcement of these acts, Congress provided, 
March 3, 1893 — 27 Stat. L., 569 — that "it shall be the duty of 
the master or commanding officer of the steamer or sailing 
vessel having said immigrants on board, to deliver' to the 
inspector of immigration, at the port, lists or manifests made 
at the time and place of embarkation of such alien immigrants 
on board such steamer or vessel, which shall, in answer to 
questions at the top of said lists, state, as to each immigrant, 
the full name, age, and sex; whether married or single; the 
calling or occupation; whether able to read or write; the 
nationality; the last residence; the seaport for landing in the 
United States; the final destination, if any, beyond the seaport 
ef landing; whether having a ticket through to such destina- 
tion; whether the immigrant has paid his own passage or 
whether it has been paid by other persons or by any corpora- 
tion, society, municipality or government; whether in pos- 
session of money, and if so, whether upwards of thirty dollars 
or less; * * * whether ever before in the United States, 
and if so, when and where; whether ever in prison, in alms- 
house or supported by charity; * * * whether under con- 
tract, express or implied, to perform labor in the United States," 
and providing further that each person shall be given a ticket 
of identification on arrival. 

19 Cal., Const, Art. X, Sec. 6; Colo., Laws 1887, p. 232; 
Dist. Col., R. S. of U. S. relative to, Ch. 35; Iowa, McCl. 
Ann. Stat. 1884, Sees. 4737-8: Mass., Laws 1887, Ch. 447: Mont., 
Const., Art. XVIII; N. J., Supl. Stat. 1886, p. 969. Sees. 17-26; 
N. Y., Rev. Stat. 1881, p. 2615, Sec. 97, Acts 1884, Ch. 21, Sec. I; 



366 THE GROWTH OF DEMOCRACY. 

Others have provided that convict laborers shall be em- 
ployed only within the prison walls or on government 
works. 20 It is provided in Maine — Stat. 1887, ch. 149, 
sec. 3 — that "so far as practicable, the industries upon 
which said convicts shall be employed, shall be the man- 
ufacture of articles not otherwise manufactured in the 
State," and in Michigan — cons., art. 18, sec. 3 — that "no 
mechanical trade shall hereafter be taught to convicts in 
the State prison of this State except the manufacture of 
those articles of which the chief supply for home con- 
sumption is imported from other States or countries." 
The laws above referred to are intended to protect the 
free laborer from competition with criminals, and, what- 
ever may be said about their propriety, they are in- 
dicative of the frame of the legislative mind. The State 
of New Jersey has taken another view of convict labor 
laws. Section 4 of the Rev. Stat. 1877, p. 11 17, provides 
that: 

In order to encourage industrious and proper habits, a 
separate account shall be opened and kept in books pro- 
vided for that purpose for each convict, in which he shall 
be credited with the amount of labor performed by him 
and above what, in the opinion of the keeper and acting 
inspectors, he ought to perform, due regard being had 
to his ability to labor, which sums so credited, shall, at 
the discharge of the convict, be paid to him or laid out 
in decent raiment for him, or otherwise applied to his 



Perm., Acts 1887, No. 30, Sec. 11; Wash., Const., Art. 2, Sec. 
29; Wyo., Rev. Stat. 1887, Sec. 3373. The same provision is 
made relative to convicts of the United States. — Stat. L., Ch. 
213, Sees. 1-2. 

20 Ariz., Rev. Stat. 1887, Sec. 2424; Del.. Code 1874, Ch. 
133, Sec. 6; Ida., Const., Art. XIII, Sec. 3; Penn., Code, Sees. 
8500, 8541; 111., Ann. Stat. 1885, Ch. 108, par. 45; la., Laws 1880, 
p. 1 156, Sec. 1; Kans., Comp. Laws 1885, Sec. 3688; La., Voor- 
hees' Rev. Laws 1870, 2d Ed., Sec. 2855 — Acts 1875, Act No. 22, 
Sec. 1; Md., Laws 1890, Ch. S90; Mo., Rev. Stat. 1889, Sec. 
7238; Miss., Laws 1880, Ch. 40, Sec. 3; Wyo., Rev. Stat. 1887, 
Sec. 3373-4- 



RESULTS— IN PRIVATE LAW. 367 

use, * * * but no credit shall be given * * * 
to any convict whose weekly earnings do not exceed the 
whole weekly expense of his maintenance in prison. 

This is a recognition of the right of the convict, as a 
member of the State, to labor and receive the profits 
thereof. The various provisions restrictive and pro- 
hibitive of child and female labor are, though not pri- 
marily passed for that purpose, a protection to male 
adult labor in that these restrictions tend to uphold or 
raise the price of labor, a principle recognized by eco- 
nomists in what is known as the wage-fund doctrine. 
The provisions requiring day labor to be employed on 
public works are intended as a protection against the 
competition of contract labor. The recent laws passed 
in Massachusetts, Pennsylvania, New York and Illinois 
against "sweat-shops" and the "sweating system" are di- 
rected toward the same end. 

When our industrial system was less complex, and 
before the centralization of capital in the hands of the 
entrepreneur, legislation against intimidation on the part 
of the employer was scarcely necessary. Elections, viva 
voce and by other methods, were quite general. Noth- 
ing better illustrates the effect of the industrial evolution 
on legislation. So similar are the provision of the later 
acts, and especially since the adoption of the Australian 
ballot, that we incorporate Sec. 7065, Smith and Bene- 
dict Rev. Stat., Ohio, 6th Ed., to indicate the extent to 
which they have generally gone. "If an employer of 
laborers, or agent of such employer, threatens to with- 
hold the wages of, or to dismiss from service, any la- 
borer in his employ, or refuses to allow to such em- 
ployee time to attend the election and vote. * * * 
shall be fined not more than two thousand nor less than 
one hundred dollars, or imprisoned in the penitentiary 
not more than three years. 

Section 109 of the penal code of Montana illustrates 



368 THE GROWTH OF DEMOCRACY. 

the advance position taken in protecting the laborer 
against intimidation by the employer: 

It shall be unlawful for any employer, in paying the em- 
ployees the salary or wages due them, to inclose their pay 
in "pay envelopes" upon which there is written or printed 
any political mottoes, devices or arguments containing 
threats, express or implied, intended or calculated to in- 
fluence the opinions or actions of such employees. Nor 
shall it be lawful for any employer, within ninety days of 
general election, to put up, or exhibit in his factory, 
workshop or other establishment or place where his em- 
ployees may be working any hand bill or placard con- 
taining any threat, notice or information that in case 
any particular ticket or candidate shall be elected work 
in his place or establishment will cease, in whole or in 
part, or his establishment be closed up or the wages of 
his workmen be reduced, or other threat, express or im- 
plied, intended or calculated to influence the political 
opinions or actions of his employees. This section shall 
apply to corporations as well as individuals, and any per- 
son or corporation violating the provisions of this sec- 
tion shall be guilty of a misdemeanor, and any corpora- 
tion violating the same shall forfeit its charter. 

We have already mentioned the lien laws passed for 
the purpose of security and payment of wages. It is only 
necessary in this particular further to say that nearly 
every species of property which is the subject of toil is 
the subject of lien also. For instance, in the State of 
Washington, a laborer has a right of lien upon all build- 
ings and the land upon which they are situated, mines, 
ditches, flumes, dykes, machinery, railroads, shingles 
and lumber, logs, steamboats and other water craft, docks 
and wharves, farm produce and many other things, be- 
sides the common law lien on personal property, in pos- 
session, upon which labor or a service has been per- 
formed; and as to labor on public property the con- 
tractors are required to furnish a bond for the security 
and payment of labor claims. 



RESULTS— IN PRIVATE LAW. 369 

Besides the lien laws, almost eyery State in the Union 
has laws making claims for labor preferred claims in 
cases of insolvency, assignment, estates of decedents, etc. 
Very many of the States have laws requiring that cor- 
porations and institutions employing above a certain 
number of men shall make payment at stated periods, as 
weekly, fortnightly or monthly, 21 and the laws against 
the truck system have been passed in about fifteen of 
the States. 22 Statutes have been passed making it un- 
lawful for railroads and mining companies to conduct or 
have any interest in stores. 23 

It has been enacted that, in case labor is not paid with- 
in thirty days, a receiver may be appointed; 24 in Michi- 
gan that a judgment for labor cannot be stayed ; 25 in Mis- 
souri and other States that notice be given of a reduc- 
tion of wages; in New Jersey that the labor of convicts 
shall be for their own benefit; in New York that there 
shall be no costs in suits for wages for less than fifty 

21 Those requiring weekly payments: N. H., 180, 21; Mass., 
194, 508, 51, 1895, 438; R. I., 1891, 918; Conn., 1749; N. Y., 
1890, 388, 1895, 791; Ind., 1893, 114, R. S., 7059 (as to mining 
and manufacturing companies only); 111., 1891, p. 213; Wis., 
1889, 474; Kans., 1893, 187. Fortnightly: Me., 1887, 214, R. S., 
8769; Wvo., 1891, 82; W. Va., Code, p. 1003, Sec. 2. Monthly: 
Va., 1887, 391, 1-2; Ind., R. S., 1756; Mo., 2538; Tenn., Ex. 
Ses. 1891, p. 5. Weekly or monthly: Cal., 1891, 146; in Con- 
necticut 80 per cent only need be paid weekly, the balance 
monthly. Conn., 1750. (Stimson, H. B. of Lab. Laws, p. 87.) 

22 Several of the States have, however, declared these laws 
unconstitutional. 

23 Md., Code 1888, Sec. 202, Art. XXIII: "No railroad or 
mining company, formed or organized under any of the pro- 
visions of this article, or which has organized under any of 
the existing laws, charter or acts of the general assembly of this 
State, shall own, conduct or carry on any store, or any interest 
in any store, or receive any portion of the profits thereof, but 
nothing herein contained shall prevent the employees of any 
corporation from forming a co-operative store." 

24 Md., Code 1888, Art. XII, Sec. 145. 

25 Act No. 147 of the Laws of 1887. See also R. S. of U. S. 
relative to Dist. of Col., Sec. 1025; McClaie's Ann. Stat, of 
la., Ed. 1884, Tit. XVIII, Ch. 2; Brightly's Dig. of Penn., 
1885, p. 1698, Amend. Ch., 228, Laws 1887. 

24 



370 THE GROWTH OF DEMOCRACY. 

dollars and nearly all of the States have laws exempting 
wages from execution and attachment. 

As to the health of laborers, many provisions have 
been made, such as those requiring seats for females in 
stores and factories, seats for street car drivers, providing 
for hospitals, physicians, etc., and the various mine and 
factory laws regulating ventilation and prescribing other 
sanitary conditions are all intended to promote the gen- 
eral welfare. 

The regulation of factories and mines, the provisions 
requiring the inspection of boilers and machinery and 
the legislation as to the liability of corporations for in- 
jury to employees provide for the safety of the laborer. 

Thirty-three of the States have established bureaus of 
statistics, labor commissions, etc., for the purpose of fur- 
nishing to the public reliable information as to the con- 
dition and needs of labor, under this new and constantly 
changing order of things, which, together with the 
United States Department of Labor, have had a very 
large influence on recent legislation. By their efforts 
the public has become acquainted with many abuses and 
unfavorable conditions that otherwise might have re- 
mained wholly unnoticed. The information thus ob- 
tained, relative to wages and prices, slums, tenements, 
factory regulations and abuses, strikes and other sub- 
jects, has been put into the hands of the elector and the 
legislator as material with which to work intelligently 
and that they may better apprehend the social and in- 
dustrial conditions. In order that the scope and extent 
of the laws affecting capital and labor may be more 
clearly set forth than has been possible in this short 
sketch, we hereto append a schedule. 26 

While the subject in hand is one concerning the modi- 
fications of law relative to capital and labor, it may also 
be of some interest briefly to notice the attitude of our 



26 See Schedule, Appendix IV. 



RESULTS— IN PRIVATE LAW. 371 

courts in construing these laws and passing on their 
validity. We have already noticed something of their 
attitude relative to the constitutional right of freedom of 
contract. This principle is of especial interest here, as it 
has been involved in, has been the turning point of, most 
of the decisions on the subject. The general theory of law 
is that freedom of contract is a constitutional right and 
therefore cannot be impaired by ordinary legislation. In 
support of this contention some of the courts have in- 
voked one constitutional provision and some another; 
some have gone behind written constitutions and found 
their authority in the unwritten constitution of England. 
Whatever be the reason urged, the courts being unani- 
mous in the holding that it is a constitutional right, it 
has followed, in their process of reasoning, that the only 
power which the legislature can exercise in restraint of 
this right is the police power. Another constitutional 
principle that has stood in the way of labor legislation is 
the constitutional prohibition of "class legislation." An 
example of the operation of these principles is found in 
the decision of the Supreme Court of Nebraska. 27 The 
legislature had passed a law (Laws 1891, ch. 54) which 
provided that eight hours should constitute a legal day's 
work for all classes of mechanics, servants and laborers 
throughout the State of Nebraska, excepting those en- 
gaged in farm and domestic labor, and that any em- 
ployer or corporation working their employees over the 
time specified should pay, as extra compensation, double 
the amount per hour paid for previous hours. This law 
was held unconstitutional, both on the ground that it 
denied freedom of contract and that it made a class dis- 
tinction against farm and domestic labor. There are 
many other cases holding laws prescribing the hours of 
labor, prohibiting the "truck" system, fixing the time of 



Low v, Reese Printing Co., 59 N. W. Rep., J62. 



o>2 THE GROWTH OF DEMOCRACY. 

payment of wages and giving labor special privileges un- 
constitutional on one or the other or both of these 
grounds. When we come to consider these decisions in 
the light of judicial reason it would appear that the 
better class of authorities and the best considered cases, 
from a standpoint of the logic of our institutions, hold 
that a law which applies to all members of a certain class 
within the State does not come within the constitutional 
prohibition of "class legislation." The principle of 
"freedom of contract," which has been so firmly held to 
in the cases above mentioned, has certainly been se- 
riously impaired in other respects. For instance, the 
homestead laws, especially of Texas, which make a mort- 
gage on a homestead absolutely void; the laws regulating 
the time of employment of women, which have scarcely 
been questioned; the laws providing for an equity of re- 
demption in mortgaged estates and other laws in re- 
straint of alienation; the laws of assignment and bank- 
ruptcy, allowing obligations to be liquidated upon pay- 
ment of a certain per cent of the amount due. The prin- 
ciple of public policy has operated to deny the enforce- 
ment of contracts in waiver of the right of redemption 
and the statute of limitations, contracts limiting the liabil- 
ity of common carriers and in restraint of trade, such as 
a contract to refrain from conducting a certain kind of 
business. 28 None of these could be said to come within 
the scope of the police power unless we give to that 
power a wider scope than is usually given, and yet they 
are all limitations upon the right of contract. Mr. Stim- 
som 29 carries the doctrine so far as to hold that "it is 



2S In Oregon Steam Nav. Co. v. Winston, 20 Wall. (U. S.), 
64, the court said that there are two grounds upon which the 
doctrine that a contract in restraint of trade is void as against 
public policy — 1st, the injury to the public by being deprived 
of the restrained party's industry; 2d, the injury to the party 
himself by being precluded from pursuing his. occupation, thus 
preventing him from supporting himself and family, 

29 Hand Book of Labor Laws, p. 40, 



RESULTS— IN PRIVATE LAW. 373 

possible that a statute requiring municipal corporations 
to pay not more than a certain sum (for wages) would 
also be held unconstitutional in favor of the city or town 
resisting it;" and, further, speaking of the towns in the 
New England States fixing the price they would pay to 
unskilled labor, that "such resolutions have not com- 
monly been questioned, though it may be doubted wheth- 
er town officers are governed thereby." This position 
seems quite untenable, as it is a well-established prin- 
ciple that the various officers and agents of government, 
under our system, can only act within the powers granted 
them; that they, as officers, are purely creatures of law' 
and prescribed in their action by the law; that such pro- 
visions as those mentioned only prescribe the kind of 
contract that the State, through its officers can make, 
and unless they operated to prevent the operation of gov- 
ernmental functions there seems no reason why officers, 
as the agents of the State, should not be bound. 

When we consider that the scope of "police power" is 
wholly undefined, even in the minds of jurists — it not 
having been reduced to any stated principle, its scope 
really residing in the mind of the court applying it — 
when we consider that there have been many invasions 
of the right to freedom of contract on other grounds 
than that of police regulation which have been supported 
by the courts, and when we further consider that in the 
several States many legislative restrictions upon con- 
tracts relative to capital and labor have been upheld or 
been allowed to stand for years unquestioned, the courts 
in the future may perhaps be pardoned for looking for 
some other ground than that heretofore taken for de- 
claring legislation of this character unconstitutional. It 
may be safely predicated that courts, as well as legis- 
latures, are largely the product of the age; that their en- 
vironment is reflected in their decisions; that public pol- 
icy and the demands of the general welfare will modify 



374 THE GROWTH OF DEMOCRACY. 

precedents, make prominent other principles and carry 
the courts along with what seems to be the necessary 
trend of legislation. Under the present highly organized 
industrial system capital and labor are separated; privity 
of contract is not between the capitalist and the laborer 
but with an entrepreneur, who is often in control of large 
interests. He himself is often financially irresponsible. 
Under a regime in which enormous accumulations of 
capital are controlled by a few and in which industrial 
organization is largely of a corporate character, with this 
changed and ever changing environment, it becomes 
necessary that the established order, the law, should 
also change in order that essential justice may be main- 
tained. This seems to be the tendency of law under 
our free institutions. The remarkable evolution that has 
taken place, and which in this cursory manner we have 
sought to trace, is the reflection of environment. The 
logic of events which made this adaptation necessary re- 
quires that the machinery of government should sup- 
port it. 

The status of the laborer has been changed; the atti- 
tude of society reversed. Instead of being considered a 
serf, existing for the benefit of his master or employer, he 
is a citizen with equal rights. Instead of being regarded 
as an inferior he is looked upon as a peer. Labor is no 
longer ignominious as of old, but to-day, he is most 
highly respected who is the greatest servant of society. 
It was by unremitting toil that a foothold was gained 
upon this continent, and ever since "work" has been the 
watchword of our American society. It was by hard 
work that the pioneer pushed his way out into the for- 
ests and carved out his new home; it was work that 
transformed this continent from a broad expanse of wild- 
erness to a grand mosaic of fertile fields and happy 
homes; it is work that has, during the last fifty years, 
brought us out from an insignificant place among nations 



RESULTS— IN PRIVATE LAW. 375 

to be the wealthiest and most resourceful on the face ot 
the earth. It is toward the sluggard, the breather in in- 
dolence, whether he be lord, duke, "remittance man" 
snob, dude or tramp, that society to-day points the finger 
of scorn. Standing upon the high plain of equity, which 
was established during the colonial period, the tendency 
has been to constantly adapt our legal system to the 
social and industrial environment. As the social and in- 
dustrial conditions become modified, our lawmakers, be- 
ing dependent upon the laborer, the capitalist and the 
undertaker alike for support, constantly seek adaptations 
which will render justice toward all according to the 
highest political consciousness of the State. We claim 
no Eutopia. We do not assert either unanimity or per- 
fection in our laws; but the tendency is plainly to be seen. 
There are many conditions that we might wish otherwise, 
many new questions to be solved in our relations one 
with another as our civilization progresses, but with our 
present system of co-operative government, our higher 
standards of education and our better knowledge of exist- 
ing conditions the result is assured. 



II. 



DEBTOR AND CREDITOR. 

Unfortunately, our laws governing the relation of 
debtor and creditor at the time of the establishment of 
our independence had also come from England. Severe 
as were the laws of other nations, as stated by Grahame, 30 
"no modern nation had ever enacted or inflicted greater 
legal severities upon debtors. That jealous regard for 
liberty and national honor, that generous concern for 
the rights of human nature which the English have al- 



30 Grahame's Hist., Vol. Ill, p. 179. 



376 THE GROWTH OF DEMOCRACY. 

ways claimed as distinguishing features of their charac- 
ter, had proved unable to withstand the most sordid and 
inhuman suggestions of commercial ambition. For the 
enlargement of their commerce they sanctioned the atro- 
cities of the slave trade, and for the encouragement of 
that ready credit by which commercial enterprise is pro- 
moted, they armed the creditor of insolvent debtors with 
vindictive powers, by the exercise of which freeborn 
Englishmen, unconvicted of crime, were frequently sub- 
jected to a thraldom as vile and afflicting as the bondage 
of negro slaves in the West Indies." Even this portrayal 
of the legal status and condition of those who, by mis- 
fortune, mismanagement, of failure in business judgment, 
had become insolvent does not paint the picture black 
enough. Lord Townsend is recorded as saying: 31 "The 
case of many insolvent debtors was, by the unmerciful- 
ness of their creditors, worse than that of galley slaves 
who were provided for and kept clean, whereas in Eng- 
land they are in a starving condition and rotting in a 
gaol." Again says Grahame: "So long was it, before 
English sense and humanity were fully awakened to the 
guilt and mischief of their barbarous legal system and its 
still more barbarous administration, that, till a late period 
in the eighteenth century, misfortunes in trade exposed 
an Englishman to a punishment more dreadful than the 
nineteenth century would suffer to be inflicted upon the 
most infamous and detestable offenders." Says May: 32 
"By imprisonment restitution was made impossible. A 
man was torn from his trade and industry and buried in 
a dungeon. The penalty of an unpaid debt was impris- 
onment for life. * * * He might become insane or 
dangerously sick, but the court was unable to give him 
liberty." Among other cases we have recorded that of a 



31 Cobbette's Pari. Hist., Vol. VIII, p. 680. 

32 Const. Hist, of Eng., Vol. II, p. 269. 



RESULTS— IN PRIVATE LAW. 377 

woman dying in jail, after an imprisonment of forty-five 
years, for a debt of nineteen pounds. 33 Even the phi- 
lanthropy of Oglethorpe released the English debtor only 
at the expense of expatriation; but, though broken in 
spirit, overcome by vicissitude, with blighted hope and a 
fallen pride, in order that he might take his wife and 
little ones away from the scenes of their misfortunes, 
away from penury and want, and begin life anew where 
nature, though ofttimes severe, was yet more kind than 
his fellow-men, and where, though surrounded by sav- 
ages and the dangers of the frontier — this was to him far 
preferable to the almshouse for his family and the prison 
for himself. Coming to this country, however, he did not 
escape from the vigor of debtor laws. Even in Georgia, 
that land "born of philanthropy, cradled by benevolence 
and guarded by valor," the debtor's lot was a hard one. 
The colonists had brought with them a legal system 
which had upon it the stamp of ancient commercial bar- 
barity and sordid cruelty. This, though modified from 
time to time, was retained till about the time of the 
revolution. In order that we may get a fair view of the 
status at that time and immediately prior thereto, we 
quote from the laws of New York (1774) the following: 

Whereas, it has been represented to the General As- 
sembly that the several persons in the different gaols in 
this colony are destitute even of the common necessaries 
of life, and it is considered reasonable that, if their credit- 
ors will not consent to their enlargement or contribute to 
their subsistence, that such persons shall be released by 
the legislature, and to this end be it enacted, that such 
of the creditors of the following named persons [naming 
those confined] who shall insist upon their debtors being 
detained * * * shall agree in writing, under their 
hand and seal, to pay and allow three shillings and six- 
pence per week unto said persons respectively * * * 



33 Reports of 1792, Com. Jour. XI, VII, 647. 



378 THE GROWTH OF DEMOCRACY. 

the said prisoners whose creditors shall not enter into 
such an agreement * * * shall be entitled to the 
benefits of this act. 

The act then provides for the insolvent prisoner filing 
an inventory of property and an assignment thereof and 
upon petition to the court being released. "Provided, 
That this act shall not apply to Crown cases nor creditors 
residing in Great Britain." By reason of its extended 
commercial dealings, its intimate relation with England, 
and its very tardy but gradual progress, let us follow 
the evolution of the law in New York. 

1784 — April 17. — The assembly passed an act whereby 
imprisoned debtors generally might make an inventory 
of all property and an assignment of the same and by 
petition be released from custody and debt. 

1784 — Nov. 24 — and April 25, 1785. — This act was ex- 
tended to those not in confinement. 

1786. — A similar act was passed allowing the debtor to 
retain wearing apparel and bedding for himself and 
family. 

1787. — The act of '86 was extended so that any sur- 
plus in the debtor's estate might be returned. 

Then the influence of the creditor class and complaints 
from England produced a retrograde movement and 
with a "whereas, it has been found that the act entitled 
'an act for the relief of insolvent debtors' has been pro- 
ductive of much mischief" the same was repealed Feb. 8, 
1788, and March 21, 1788, an act was passed whereby a 
debtor might be discharged upon the petition of three- 
fourths, in value, of his creditors, and upon a complete 
assignment of property, to be released from custody. 

1791 — May 10. — The benefits of this act were extend- 
ed, upon their own petition, to debtors who have been 
imprisoned one year. 

1799 — April 2. — Extended the benefits of the act to 
those who had been imprisoned three months. 



RESULTS— IN PRIVATE LAW. 379 

1801 — March 24. — An act passed providing for the dis- 
charge from custody after thirty days those owing $25 
and after three months those owing $500 or more upon 
petition and assignment. 

18 1 3. — An act with similar provisions. 

1817. — The legislature passed an act to compel assign- 
ments by imprisoned debtors. 

1819. — An act providing for voluntary assignment for 
the purpose of avoiding or exonerating the debtor from 
liability of imprisonment. 

1830. — A provision was made for prisoners arrested 
upon civil process being kept in a room separate from 
those detained on criminal charge. That females shall 
not be imprisoned for breach of contract. That soldiers 
of the revolution shall not be imprisoned for debt. 

1831 — April 26. — An act was passed to abolish im- 
prisonment for debt and to punish fraudulent debtors. 

Such is the history of the law of imprisonment in New 
York, and such, in general, the history of the law in the 
other States. 

After the declaration of independence most of the 
States incorporated in their constitutions prohibitions 
against imprisonment for debt. At first provisions were 
made that there should be no imprisonment for debt 
where there did not exist strong "presumption" of fraud 
and the debtor had not sought to avoid an assignment 
for his creditors. Chronologically they appear as fol- 
lows: (1776) North Carolina, (1776) Pennsylvania, 
(1777) Vermont, (1792) Kentucky, (1796) Tennessee, 
(1798) Georgia, (1802) Ohio, (1816) Ohio, (1817) Missis- 
sippi, (1819) Alabama, (1836) Arkansas, (1865) Missouri, 
(1866) Nebraska. 

Then the State constitutions prohibited imprisonment 
for debt, except where fraud "actually exists," as fol- 



3S0 THE GROWTH OF DEMOCRACY. 

lows: (1849) California, (1855) Kansas, (1857) Iowa, 
(1857) Minnesota, (1868) South Carolina. This list of 
constitutional provisions was gradually added to until at 
this time it includes about one-half of the States. In 
about one-fourth of the States imprisonment for debt is 
absolutely abolished, and those not having constitutional 
prohibitions have conserved the same end by statute. 

With the constitutional and legislative measures pro- 
tecting the debtor against imprisonment the work was 
only begun. By gradual evolution the debtor has been 
allowed to have a release from the civil demands of his 
Creditors and from judgments against him through bank- 
ruptcy and insolvency proceedings. As to legislative 
provisions for insolvency we will not state in detail the 
evolution in the several States or as shown by the States 
collectively. It is only necessary to say that all States 
have laws upon this subject. In times of National dis- 
tress Congress has passed bankruptcy laws to give uni- 
formity throughout the States. Many of the States allow 
a discharge upon payment of fifty per cent of the indebt- 
edness, while others a complete discharge by simply as- 
signing and pro rating property among creditors. 

Nor does the law allow the creditor to take all of the 
property of his debtor. During the last few years our 
homestead and exemption laws have grown until at 
present every State and territory has protected the debtor 
against levies upon the property and implements consid- 
ered necessary for the support and maintenance of him- 
self and family. The evolution of this class of legisla- 
tion is very interesting and cannot be better shown than 
by referring to the laws themselves. From these the 
homestead exemptions appear as follows: 



RESULTS— IN PRIVATE LAW. 



381 



HOMESTEAD EXEMPTIONS. 

AMOUNTS EXEMPT. 



None. 


$100. $500. 


$600. 


$1,000. 


$1,500. 


$1,600. 


Mass. 


Md. N. H. 


Ind. 


Utah* 


Mich. 


Ga. 


Penn. 


Ver. 




W. Va. 


Mo. 




R. I. 






Tenn. 


Wyo. 




Del. 






S. Car- 






D. C. 




.♦ 


Ohio 
N. Y. 

N. Mex. 
N. J. 
Ky. 
111. 
Conn. 








$2,000. 


$2,500. $4,000. 


$5,000. 


Unlim. 


Specif'd. 


Ala. 


Ark. Ari. 




Idaho 


Cal. 


Fla. 


Colo. 






Neb. 


N. Car. 


Kans. 


La. 






S. Dak. 




N. Dak. 


Nev. 






Tex. 




Wis. 


Wash. 










la. 


Va. 










Me. 



*Utah, $1,000 for debtor, $500 for wife, $250 for each other 
member of family. 

Generally speaking, those older States that have their 
laws crystallized around ideas of decades past, are repre- 
sentative of the status of that period, while the newer 
ones, abreast with the thought and ideas of the times, re- 
veal the present. In most of them the only way that a 
homestead can be lost by process of law is by a mortgage 
or for labor lien. The State of Texas, however, has 
taken an advanced position. There a mortgage upon a 
homestead is made absolutely void and the mortgagee 
must treat his claim as an ordinary money obligation. 
This seems a most wholesome provision, for the reason 
that many have lost their homes for sums much less than 
their actual value by giving mortgages thereon in times 
of increased business activity, when great inducement is 



382 THE GROWTH OF DEMOCRACY. 

offered to investment; in times of business relapse and 
prostration they have been unable to sell at any price; 
consequently they have been required to let the home- 
stead go with the mortgage. The tendency in all of the 
States seems to be to enlargement and better security of 
the homestead exemptions. 

Examining the personal property exemptions, while we 
find them even more varied, yet they are more general. 
They have been employed in every State. We give a 
synopsis and extracts from only a few, which are repre- 
sentative of the evolution and tendency of the law in this 
particular: 

Maryland. 

Cons. Art. 3, Sec. 44. — Laws shall be passed by the 
general assembly to protect from execution a reasonable 
amount of the debtor's property, not exceeding in value 
the amount of five hundred dollars. 

Code, 1888, Art. 83, Sec. 8.— One hundred dollars' 
worth of property of each defendant therein shall be ex- 
empt from execution issued in any judgment in any civil 
proceeding whatever except on judgment for breach of 
promise and for seduction. 

Sec. 11. — All wearing apparel, mechanical text-books 
and books of professional men, tools of mechanics and 
all tools and other mechanical instruments or appliances 
moved or worked by hand or foot necessary for the prac- 
tice of any trade or profession and used in the practice 
thereof, shall be exempt from execution in addition to 
the property above stated. 

New Hampshire. 

General Laws, 1878, Chap. 224. Sec. 2. — The follow- 
ing goods and property are exempt from attachment and 
execution : 

I. The wearing apparel necessary for the use of the 
debtor and his family. 

II. Comfortable beds and bedsteads and bedding, 
necessary for the debtor, his wife and children. 



RESULTS— IN PRIVATE LAW. 383 

III. Household furniture of the value of one hundred 
dollars. 

IV. One cooking stove and the necessary furniture 
belonging to the same. 

V. One sewing machine kept for the use of the debtor 
and his family. 

VI. Provisions and fuel to the value of fifty dollars. 

VII. Uniform, arms and equipment of every officer 
and private in the militia. 

VIII. The Bibles, school books and library of any 
debtor, used by him or his family, to the value of two 
hundred dollars. 

IX. One hog and one pig and the pork of the same 
when slaughtered. 

XI. One cow; one yoke of oxen or a horse when re- 
quired for farming or for teaming purposes or other ac- 
tual use, and hay not to exceed four tons. 

XIII. The debtor's interest in one pew in any meet- 
ing house in which he and his family usually worship. 

XIV. The debtor's interest in one lot or right of 
burial in any cemetery. 

Acts 1883, Chap. 3, Sec. 1. — Domestic fowl not ex- 
ceeding fifty dollars in value. 

Colorado. 

Genl. Stat., 1883. Chap. 60, Sec. 1865. — The neces- 
sary wearing apparel of every person shall be exempt 
from execution, writ of attachment and distress for rent. 

Sec. 1866. — The following property, when owned by 
any person being the head of a family, and residing with 
the same, shall be exempt * * * and such property 
shall continue exempt while the family of such person are 
removing from one place of residence to another within 
the State: 

First — Family pictures, school books and library. 

Second — A seat or pew in any house or place of public 
worship. 

Third — Sites of burial of the dead. 

Fourth — All wearing apparel of debtor and his family; 
all beds, bedsteads and bedding kept and used by the 



384 THE GROWTH OF DEMOCRACY. 

debtor and his family; all stoves and appendages kept for 
the use of the debtor and his family; all cooking utensils 
and all household furniture not herein enmerated, not 
exceeding one hundred dollars in value. 

Fifth — The provisions for the debtor and his family 
necessary for six months. 

Sixth — The tools and implements or stock in trade of 
any mechanic, miner or other person used and kept for 
the purpose of carrying on his trade or business, not ex- 
ceeding two hundred dollars. 

Seventh — The library and implements of any profes- 
sional man not exceeding three hundred dollars 

Eighth — Working animals to the value of two hundred 
dollars. 

Ninth — One cow and calf, ten sheep, and the necessary 
food for all the animals herein mentioned for six months, 
provided or growing or both. Also one farm wagon, 
cart, or dray, one plow, one harrow and other farming 
implements, including harness and tackle for team, not 
exceeding fifty dollars in value. 



T( 



Revised Statutes, 1879. Title 40, Art. 2335. — The fol- 
lowing property shall be reserved to every family exempt 
from attachment, execution and every species of forced 
sale for the payment of debts, except as hereinafter pro- 
vided: 

Second — All household and kitchen furniture. 

Third — Any lot or lots in a cemetery held for purpose 
of sepulture. 

Fourth — All implements of husbandry. 

Fifth— All tools, apparatus and books belonging to 
any trade or profession. 

Sixth — The family library and all family portraits and 
pictures. 

Seventh — Five milch cows and their calves. 

Ninth — Two horses and one wagon. 

Tenth — One carriage or buggy. 

Eleventh — One gun. 

Twelfth — Twenty hogs. 

Thirteenth — Twenty head of sheep. 



RESULTS— IN PRIVATE LAW. 385 

Fourteenth — All saddles, bridles and harness neces- 
sary for the use of the family. 

Fifteenth — All provision and forage on hand for home 
consumption. 

Sixteenth — All current wages for personal services. 

In giving this very limited sketch of the evolution of 
the law relative to debtor and creditor it has been the aim 
of the author to state only facts together with the sources 
from which derived. He does not wish to place himself 
in the attitude of drawing conclusions or proposing the- 
ories. His only aim is to so get the true status and his- 
torical tendency before the mind of the reader that he 
may draw his own conclusions. Various theories might 
be offered as to where these tendencies are leading and 
what the logical end. Suffice it to say that we have de- 
parted from the ancient rigor of the law that had for its 
motto, "Let the debtor beware" — a law which gave to 
the creditor not only the property of the unfortunate 
debtor but his body also; that the law has grown more 
kind; that its attitude is changed; that there has been a 
gradual evolution. As a nation we have found that citi- 
zenship is best nurtured and virtue more firmly estab- 
lished in the home where there is a sufficient competence 
for life, for education and comfort, and that pauperism 
and penury is the birthplace of disease, ignorance and 
crime. Recognizing these facts, we have, through rep- 
resentatives reared up around the home and around the 
person and the family of the debtor legal safeguards 
over which not only the creditor cannot pass but, in 
many instances, which the debtor himself cannot tear 
away. A further analysis of the laws relative to debtor 
and creditor may be found in the appendix. 
25 



386 THE GROWTH OF DEMOCRACY. 



CHAPTER XV. 

PROBLEMS FOR THE DEMOCRACY OF TO-DAY, OR 

THE MODIFICATIONS STILL NECESSARY 

TO BE MADE. 

We have outlined the modifications of our law and in- 
stitutions in the evolution of "government for the gov- 
erned." Is the adaptation complete? 1 Have we real- 
ized the highest ideals of the State organized according 
to the principles of the general welfare? The murmur- 
ings and dissatisfactions of our people tell us that 
we have not. We have but to look about us to know 
that all is not well — that the edifice which was be- 
gun by our fathers is not yet completely adapted to 
the environment in which we live, that there is still 
work for us to do as citizens of a great democratic na- 
tion. What is the work, what the changes to be made 
in order to adapt our political institutions to the end in 
view? These are the problems which the people in their 
sovereign capacity have before them for solution. 

In tracing the evolution of the past our laws and con- 



1 It must not be thought that any political system can be 
brought to such a state of perfection that no further change 
will be required. We live in a universe of changing environ- 
ment, and political institutions, like other forms of life, must 
grow; that growth must be a continual adaptation to the con- 
ditions of highest well-being of the society which sustains it. 
It is in this sense that completeness or perfection must be under- 
stood. It was affirmed in the time of our fathers that "eternal 
vigilance is the price of liberty." Liberty, in this sense, signifies 
the attainment of the highest advantage for life. Eternal vigi- 
lance is required in order that we may so adapt our institu- 
tions to the conditions of highest advantage that the individual 
may not suffer. This is a constant duty imposed on every 
individual endowed with thought and reason — a biological law 
that cannot be violated without loss. 



PROBLEMS OF TO-DAY. 3S7 

stitutions have served as landmarks. In attempting' to 
define the problems of the present we must rely on pop- 
ular judgment. The general welfare is our standard. 
In attempting to measure institutions by this norm 
we can only express an individual judgment. Popular 
opinion must be the arbiter both of the question of neces- 
sity for change and of the expediency of the modifications 
proposed. Without arrogating any claim to originality 
or superior judgment, either in the discovery of causes 
or in the solution of problems presented, the writer has, 
in the present chapter, assumed to give expression to his 
observations and conclusions, in the form of suggestions 
as to the modifications of law which still seem necessary 
to be made in order to adjust our political system to the 
well-being of society. 

The conditions that at present confront us, which make 
further modifications necessary, may be formulated and 
stated as follows: First, incompetency in office; second, 
inequality in elections; third, the employment of the spoils 
system in appointments; fourth, the corruption of our 
legislatures; fifth, the subversion of municipal govern- 
ment in the interest of organized spoliation. 

These indictments, when stated in such general terms, 
seem alarming and, unless we hold in mind the qualifica- 
tions to be made, unless we view them in the light of 
the progress made and referred to in previous chapters, 
we shall be apt to say that they include all that is bad in 
government. When viewed from this standpoint, how- 
ever, they appear as remnants only, as effects produced 
either by the retention of certain elements which belong 
to a regime of the past or by a failure to adapt our insti- 
tutions to the changing conditions of the present. And 
the remedy in each case is not far distant or difficult of 
application. To adapt our institutions to our present 
environment, to complete the evolution of government 
based on the general welfare, we require nothing new 



388 THE GROWTH OF DEMOCRACY. 

or untried. If in each case the adaptations already made 
or begun are extended a little further or are made general 
in their application, our problem will be solved. 2 

I. 

The first condition present demanding change, that of 
incompetency in office, seems to be largely attributable 
to the progress of the age. Again postulating the satis- 
faction of desire as the prime purpose of the voluntary 
activities of mankind, the history of the race may be re- 
garded as a record of strife to obtain this satisfaction, the 
progress of civilization as the development of a broader 
and still broader co-operation as a means to this end. 
Without this broader co-operation, without division of 
labor, without these adaptations in the interest of econ- 
omy of effort and resources, progress would have been 
impossible and the race must of necessity have remained 
in rude barbarity with very scanty means of life. But 
broader co-operation demands more comprehensive po- 
litical organization. It would be impossible for the va- 
rious members of society to co-operate for the attain- 
ment of their ends without an established order, without 
adherence to certain rules for the conduct of their affairs. 
There are also many things necessary to the highest well- 
being of all of the members of society that can better be 
provided by society at large than by individual members. 3 

2 It is not argued that we can apply a remedy that will be 
good for all time; that as a people we can adopt a panacea 
for all ills present and future. The ever-changing conditions 
of society in this age of change and progress will make new 
adaptations necessary from time to time. But the problems that 
confront us are the result of conditions present, and this is an 
environment to which adaptations can be made. Especially im- 
portant are these adaptations when they involve the funda- 
mental principles and purposes of our political organization. 

3 For example, it wo.uld be impossible for an individual or 
even a large business corporation to provide itself with the 
present means of communication without such an enormous 
outlay as to make it suicidal. Yet the government can do this 
at a very nominal cost to the individual. 






PROBLEMS OF TO-DAY. 389 

As the co-operation broadens, as the industrial world 
becomes more thoroughly organized, as the functions of 
individual life become more highly differentiated, the 
number of services that can be advantageously performed 
by society is vastly increased. 4 Government is the nec- 
essary concomitant of industrial welfare and progress; 
indeed, it must be regarded as a part of industry, and a 
very necessary part. The State is a vast corporation 
having to do not only with the making of rules of order 
for business and administering them, but also, from 
necessity, with such of the productive activities as, by 
virtue of its broader organization and more general pur- 
pose, better adapts it to the service of all its members. 
Such are the conditions and such the evolution that have 
led to incompetency in office. 

To an experienced business man a mere statement of 
these conditions suggests a remedy. The growth of his 
own business has furnished almost an exact parallel. At 
first a small merchant in a Western town, he knew every 
piece of goods in stock, its cost price, its probable mar- 
ket value. He did his own buying, his own selling; he 
needed no complicated system of books, no strict method 
of business. He himself was there to render a service to 
society by bringing such goods to market as the commu- 
nity might desire, and to take in exchange therefor such 
other things as would be of greater service to himself or 
his subsequent customers than the things parted with. 
As his business grew, finding that he alone could not 



4 This fact has been forcibly illustrated during the last cen- 
tury when we contemplate the increasing number of govern- 
ment works and institutions, light, fuel, and water plants, rail- 
ways, telegraph, canals; are a few of the governmental under- 
takings that were in the beginning of the century confined 
to private enterprise. Whenever any enterprise becomes so 
widely extended as to involve the interests of the entire com- 
munity it is then a proper subject for public control and can 
be operated with greater advantage to the community by the 
government. 



390 THE GROWTH OF DEMOCRACY. 

render such service as was demanded, he employed a 
clerk. But all of the acts of the clerk were under his own 
supervision and immediate direction, and there was still 
no need of modifying his system of business. But the 
town grew to be a city and the demands for his particular 
kind of service to society enlarged in proportion. In- 
stead of a small country merchant we have a Marshall 
Field, with factories, wholesale and retail houses. He 
has purchasing agents all over the civilized world. He 
does a million-dollar business each week. He gives em- 
ployment to thousands of men, women and children. 
Now Mr. Field may never see a customer or an em- 
ployee. He may sit in his office and know all the while 
that not a button, a thimble, a spool of thread will be 
lost without someone being held responsible therefor. 
He may remain at his home a month at a time and know 
that his immense establishment will move on under the 
most competent management. How is this made pos- 
sible? Why has Mr. Field been so successful while hun- 
dreds of others have failed? Go into any department of 
his mammoth establishment and the answer will be ap- 
parent. His business has been so well organized that 
each department, in its own interest, becomes a check on 
the other; each employee has a certain duty to perform, 
each act has a record, so that responsibility may be fixed. 
Every detail is managed with regard both for the great- 
est economy and the greatest safety. Go to Mr. Field 
and tell him of some personal service that you have ren- 
dered to him, and ask him for a position as manager of 
a department, and what will he say? He will inquire 
into your habits, your honor, your ability and your ex- 
perience in doing that particular kind of work. He will 
find out whether you can perform that service better 
than any one else available. If he finds that you have 
not the proper habits, that you have been dishonorable 
with others, are wanting in general ability, or have not 



PROBLEMS OF TO-DAY. 391 

had the requisite experience to insure him competent 
service, he may reward you in other ways for your at- 
tentions and kindness, but he will tell you that he cannot 
hamper his business with an incompetent employee. To 
use any other method would be to hazard success, to 
make broad co-operation impossible. Broad co-opera- 
tion requires such a division of labor as will bring about 
the largest returns for the least cost. It also requires 
that every place in the co-operative system shall be filled 
by one competent to perform that particular service. 

We have already done much to secure competence in 
our civil service, since 1883. The Federal service has 
been revolutionized, about 87,000 employees being under 
rules which make tests of competency rather than par- 
tisan service or "patronage" the first condition of em- 
ployment. With rigid examinations as a test for merit, 
probation as a test for fitness, promotion as a reward for 
efficiency and removal as a check on incompetency the 
civil service, in departments where these rules have been 
made applicable, has steadily improved. In the States 
it has so far been applied only to cities and the most 
populous counties. The experience, not only of our own 
country, but also of England, France and Germany, all 
argues that in order to avoid incompetency the same tests 
must be applied to the civil service as are employed in 
private service. In fact, till such a plan is adopted, pri- 
vate co-operation will be hampered and the further ex- 
tension of our civil service will be rendered impossible. 
For certain purposes of government we need competent 
engineers. Shall we entrust the lives and fortunes of the 
people to the favorites of the political boss? We need 
capable health officers, inspectors of sewers, boilers, 
steamboats and locomotives; shall we rely on the "ward 
heeler" for this service? Naval constructors and archi- 
tects, ship builders, bank and postal inspectors, auditors 
and printers are necessary. Shall we depend on chance 



392 THE GROWTH OF DEMOCRACY. 

and the dictates of the puveyors of spoils for the char- 
acter of our service here? What is it that has rendered 
our service incapable and caused it to be the subject of 
universal reproach but a system of appointments which, 
if employed by any private concern, would lead to ruin? 
In opposition to the merit system two arguments are 
used. The one is contained in the ancient adage, "To 
the victor belong the spoils." This, however, assumes 
that government is an organized system for plunder and 
that all things obtainable through the control of the func- 
tions of government are the rightful reward of political 
conquest; that the purpose of popular expression in elec- 
tion is that of awarding booty. Such a theory belongs 
to the age of pirates, freebooters, vikings and barons. 
If adopted by modern society retrogression is inevitable. 
The other argument is that the merit system will build 
up an office class. As long as official position is open to 
every citizen, male and female, who wishes to compete 
for a place, as long as appointments are made on merit 
and not on "a pull," as long as the civil service is under 
the direction of official heads who are elected by the 
people and who are made responsible to them for their 
own acts and the acts of their subordinates, is not this 
just what we want? We want' the civil service placed on 
as high a level as private employment and as free to 
every citizen of the land. If one becomes fitted for a 
certain class of public service and prefers such service 
to private employment he should be given as great an 
opportunity to compete for the places open in that class. 
Do we complain because there is a salesman class, an 
engineer class, an accountant class? Yet the number of 
openings for salesmen, for engineers, for accountants, is 
limited, and it is only the best that can get positions, or 
getting, retain them. If such a theory were acted on, 
the whole economic system would be wrecked and so- 
ciety would lapse to the position it occupied centuries 



PROBLEMS OF TO-DAY. 393 

ago. An office class! Our trouble is that we have no 
specialists, no trained agents, not enough of experienced 
persons, in our public service. The only way that man 
can become competent in any business is by experience, 
and the larger the experience the greater the economy 
of employment. One of the most faulty theories of the 
time has been that a year or two in office makes a better 
citizen. It is demoralizing. If the citizen does not in- 
tend to make public service a business, it takes him 
away from his regular calling for such a time as to 
cause irreparable loss. He is of little service to the pub- 
lic; he wastes so many years of his own life which might 
be profitably spent in the establishment of his own par- 
ticular business. If he does intend to make public life 
a business, his entrance, as well as his continued employ- 
ment should rest on merit and not on "political patron- 
age." Adopt the merit system in all of its best forms, 
extend it to the entire appointive service, place it under 
directive official heads that are elected by the people, with 
no power of appointment and removal except under, strict 
civil service rules; organize the departments of govern- 
ment on the same economic principle on which a large 
corporate establishment or business house is organized, 
the people being the stockholders, the elective heads the 
directors, the rules of appointment being such as to pro- 
tect the stockholders against an incompetent service, 
and, as has been often demonstrated, the public service, 
owing to its broader organization and higher motive, 
will become even more efficient and more economical 
than private. 5 By years of experience in public organiza- 
tion and in the conduct of public affairs on the basis of 
merit, the democratic State will become competent to 

5 .The public service, when under competent management, in 
all matters of general industrial interest, is more economical, 
because' it provides for. a broader co-operation, and, further- 
more, because the returns are to all the members of society 
instead of being divided to the managers in profits, 



394 THE GROWTH OF DEMOCRACY. 

undertake any enterprise that is adjudged to be of such 
general interest as to demand it. As a remedy for in- 
competency we have but to extend our merit system. 6 

II. 

The second condition which demands a modification of 
our system, — that of inequality in elections, — grows out 
of the retention in our system of certain elements which 
belong to the regime of the past — to the polity of abso- 
lutism. In this relation our institutions were not adapted 
to the principle of representation. As already shown, 
much progress has been made. The gradual abandon- 
ment of indirect elections in the States and the evolu- 
tion of the electoral plan from majority and machine rule 
toward representative government bespeak a successful 
issue of the movement. There can be little question as 
to the direction of the current. But this does not con- 
cern us as much as the determination of what is neces- 
sary to be done at the present time to attain the end in 
view — equality in elections. Specific remedies are called 
for, and in prescribing remedies we must treat each po- 
litical malady separately. In the diagnosis of each case 
we will follow the methods of the pathologist — first to 
determine the cause, then prescribe a remedy that may 
serve to remove the cause of disorder and at the same 
time to stimulate the organs to healthful activity. 



6 General welfare, being the purpose of the democratic State, 
this being best secured by the most competent service, acting 
in accord with the public will, a system of government in which 
the directive heads are elective and the subordinate officers are 
appointed and retained on a basis of merit and ability, to serve 
the public well in the capacity employed, would be the most 
democratic form of government. Of the maintenance of the 
"spoils" system, if domination by a machine working in the . 
interests of a select few, a ring, is democracy, then let us have 
something else, whatever be its name. This, however, has all of 
the earmarks of absolutism except in so far as held in check 
by the limits of popular endurance. 



PROBLEMS OF TO-DAY. 395 

The first electoral disease that demands treatment per- 
tains to the election of United States senators. How can 
we overcome bribery, political trades, deadlocks, the cor- 
ruption of our legislative bodies in senatorial elections? 
The apparent cause of the disorder is found in the "in- 
direct election." Experience has demonstrated that a 
legislature is more easily controlled and more easily cor- 
rupted than the people of a whole State. It is far more 
easy to trade with and buy a sufficient number of legisla- 
tors to control the "balance" of a small body than to 
control the expression of the electors of an entire State. 
Then, too, this method of election furnishes an added in- 
ducement for the "machine" to control the legislatures. 
It must be admitted that legislators are too commonly 
the creatures of a political machine^ and when they are 
also made the constitutional agents for selecting United 
States senators the people are rendered helpless as against 
the spoils organization in controlling the national gov- 
ernment. It breaks down the responsibility of the Sen- 
ate completely. No more disgraceful scenes are known 
to our history than those involving senatorial elections. 
If we had the record of proceedings and the details of 
senatorial elections written as they have actually tran- 
spired, it would be most damning to our sense of patri- 
otic justice and propriety. Scarcely a year passes but 
that the moral sense of the nation is shocked by sena- 
torial scandals. The first element in the application of 
our remedy for this evil that suggests itself, the condi- 
tion precedent to restoration of political health, is the 
abandonment of the "indirect election" of United States 
senators. 

Before making any prescriptions for this evil, however, 
we will diagnose a second case quite similar to the first — 
the presidential election. The cause of political disor- 
der which appeals most strongly to us in this is found in 
a combination of "indirect election" and the "district 



396 THE GROWTH OF DEMOCRACY. 

system." 7 The indirect election element, however, has 
had the corruption eliminated from it by making the 
'"presidential electors" tools for their districts, under full 
instructions how to act. Indirect election without this 
restraint would have been destructive to the satisfactory 
workings of the "district system," and the latter being 
of greater utility to the spoils organization, the former 
element was bridled by a moral obligation imposed on 
the presidential elector to vote for a particular candidate, 
— an obligation which, if broken, would carry with it 
such a stamp of party infidelity as to place the one who 
should play false to his trust in everlasting infamy. This 
moral fiction was not built up for the purpose of pro- 
tecting the people; it is in direct contravention to the 
federal constitution. The framers of this instrument 
contemplated such freedom of choice by these electors 
that the best and most able man, regardless of party, 
would be chosen to serve as President. It was built up 
to protect the district system — the worst possible form 
of direct election, a system that has given rise to more 
corruption, and which more successfully paves the way 
to a campaign for "spoils" than any other plan known 
to popular government. 

In this also the first element, the "indirect election," 
must be pleaded as the essential cause. It is the founda- 
tion of, the condition precedent to, the district system. 
It is for the purpose of creating a body to serve as indi- 
rect electors that the district system is employed. It 
would appear, therefore, that the first element in the ap- 
plication of our remedy for existing evils in senatorial 
and presidential elections is the abandonment of "indi- 
rect elections." Instead of the "indirect election" of 
senators and the vicious combination of "indirect election 



7 The States are the districts employed for the purpose of 
electing the electoral college. 



PROBLEMS OF TO-DAY. 397 

and the district system" in the election of President, di- 
rect election, or a general ticket, is suggested. 

Something, however, has already been said about the 
"general ticket" when used as a method of electing rep- . 
resentatives 8 that it has resulted in "majority rule" in- 
stead of representative government; that it gives no 
voice to the minority in governmental bodies. Does this 
objection apply to President and senators? Clearly not. 
In each — the presidential and the senatorial elections — 
only one person is to be elected. The President is the 
executive head of the nation. With only one officer to 
elect it is impossible to have proportional representation 
in that office. If we had an executive board instead of 
one man at the head of the government, as in Switzer- 
land, we might then have some device to make that 
board representative. But it has seemed best to us, as a 
people, to have the executive power centered in a Presi- 
dent, and it is but proper that he should be in accord 
with the will of the majority. Any other device would be 
out of harmony with popular institutions. By making 
the presidential election a direct one, in which the vote 
of every elector in the United States would have equal 
weight, by making it possible for the vote of one citizen 
to decide the election of the candidate for President, by 
making the vote of a citizen in the northwest county of 
the northwest State of the United States of equal value, 
in determining the result, with that of one under the 
direction of a Tammany "boss" or a Chicago "ward 
heeler," the force of the district system would be de- 
stroyed; it would give equality to each voter. The 
strategic points of the campaign would be shifted from a 
few doubtful States to each of several millions of voters; 
in the presidential election it would break up the whole 

s See page 292. 



398 THE GROWTH OF DEMOCRACY. 

order of presidential campaigning for spoils, and put the 
people on such a vantage ground that they might suc- 
cessfully cope with the "machine." The same reason- 
ing applies to the senator. He is the representative of 
an entire State, and as there is only one to be elected 
at each hustings, the vote of every citizen in the State 
should have equal weight in his selection. Something 
has been done to remedy the evil of indirect election of 
senators by instructing the legislators at the time of their 
election, or indicating by popular vote whom the people 
wish chosen for United States senator. But this is a 
mere palliative; it involves the election of representa- 
tives in an issue entirely foreign to those State policies 
which should be issues of State elections. Equality in 
the election of United States senators requires that they 
be elected on a general ticket by the people of an entire 
State. 

The third electoral disorder that demands our atten- 
tion is that of majority and machine rule in direct elec- 
tions. The cause is found in the failure to adapt our 
law to the principles of equality at the polls and equal 
representation of electors in the deliberative bodies of 
the State and national governments. The several move- 
ments traced from the "general ticket" through the "dis- 
trict system," the "limited ballot," the "cumulative vote," 
and the "free ticket" have been experimental steps in the 
right direction, but they have each fallen short of the 
end. The remedy for this disorder must be such a device 
as will guarantee to the voter equality in electoral force, 
and to the State a representative governing body. It 
must be such that, by party management and campaign 
methods, the vote of one elector will not have a greater 
weight in the balance than that of another. It must 
give to each party its full voting force and a representa- 
tion of that force in government. 



PROBLEMS OF TO-DAY. 399 

A political party, when freed from subversive tactics 
and constraining methods, is a division of the people on 
an important issue which has come before them for an 
expression of opinion. In representative government 
the method by which popular sentiment must be ex- 
pressed is through the representatives of the people 
chosen in popular election on these issues. Now delib- 
erative, administrative officers, as such, have nothing to 
do with policies or the enactment of the popular will 
into law; their duty is to administer the law already es- 
tablished, to serve the public under the defined expres- 
sion of its will; therefore these officers, as such, have 
nothing to do with political doctrines and popular opin- 
ion. As they act ministerially or clerically, their quali- 
fications should be merit and fitness, not political fault. 
But it is highly essential that legislative and deliberative 
bodies should reflect the popular will in law and ordi- 
nance. When a question arises before the people and a 
"decision" is made thereon, the deliberative body should 
have the same representative strength in reflecting the 
popular sentiment on the question as the people who 
have given voice in the election. As the legislative 
bodies are the instruments by which these issues are 
framed into the law governing the social state, it is all 
important that in matters of party issue there should be 
a proportional representation. 

But there are many questions of public policy arising, 
and much business to be transacted by these deliberative 
bodies, upon which no popular expression has been made, 
which have not engrossed the attention of parties. A 
wise settlement of these questions often requires the best 
talent. Many times questions are before the legislature 
involving the broadest national relations, or the most 
technical skill. We must, therefore, in the constitution 
of our legislative bodies, take into account two elements 



400 THE GROWTH OF DEMOCRACY. 

— the choice of men of ability 10 and the proportional 
strength of parties. 

Under the systems providing for election by "general 
ticket," the "district system," the "limited ballot," the 
"cumulative vote," and the "free ticket," there is a sacri- 
fice of one or both of these elements. For this reason 
with each of the systems in vogue the "machine" has a 
marked advantage. Having in mind the correction of 
this evil by securing proportional representation, Mr. 
Johnson of Ohio, June 15, 1892, introduced the following 
bill into the federal house: 

Be it enacted by the Senate and House of Representa- 
tives of the United States of America, in Congress as- 
sembled, that members of the House of Representatives 
shall be voted for at large in the respective States. 

Sec. 2. That any body of electors [any party] in any 
State may, in convention, nominate any number of can- 
didates, not to exceed the number of seats to which such 
State is entitled in the House, and cause their names 
to be printed on its ballot. 

Sec. 3. That every elector shall be entitled on his 
ballot to one vote each for as. many persons as the State 
whereof he is a resident is entitled to seats in the House, 
and he may cumulate his votes on a less number of per- 
sons in such manner as he may choose. 

Sec. 4. That the sum of all the votes cast for all the 
candidates in any State shall be divided by the number 
of seats to which such State is entitled, and the quotient 
to the nearest unit shall be known as the "unit of repre- 
sentation." 

Sec. 5. That the sum of all the votes cast for all the 
candidates of each body of electors [each party] nomi- 
nating candidates shall be severally divided by the quota 
of representation, and the units of the quotient thus ob- 
tained will show the number of representatives to which 



10 The general ticket was introduced to overcome the evils 
of the district system. The representation being for the State, 
each voter of the State ought to have an equal voice in the 
selection of their representatives. 



PROBLEMS OF TO-DAY. 401 

each body of electors [each party] is entitled, and if the 
sum of such quotients be les-s than the number of seats 
to be filled, the body of electors having the largest re- 
mainder after division of the sum of all the votes cast for 
all its candidates by the quota of representation, as herein 
specified, shall be entitled to the first vacancy, and so 
on until all the vacancies are filled. 

Sec. 6. That the candidates of each body of electors 
[each party] nominating candidates and found entitled 
to representation under the foregoing rules, shall receive 
certificates of election in the order of the votes received, 
the candidate receiving the highest number of votes the 
first certificate, and so on, but in case~of a tie, with but 
one vacancy to be filled, the matter shall be determined 
by lot between the candidates so tied. 

Taking a hypothetical case under this law, by way 
of illustration, we will suppose that a certain State were 
entitled to ten representatives; that each of four parties 
should nominate a full ticket; that the total number of 
votes cast at the election were 1,000,000; that of these 
votes 420,000 were cast by the Republican party, 294,000 
by the Democratic party, 196,000 by the People's party, 
90,000 by the Independent party. The quota, or unit of 
representation, in this case would be 1,000,000 divided by 
10, or 100,000. Letting the letters represent the candi- 
dates of the several parties, we will also suppose that the 
votes were cast as follows: 

Republican. Democratic. People's. Independent. 

A 70,000 a 55,ooo K.... 35,000 k 14,000 

B 65,000 b. . . . 50,000 L 30,000 1 12,000 

C 60,000 c... 45,000 M.... 29,000 m.... 11,000 

D . . . . 55.000 d 40,000 N . . . . 18,000 n 10,000 

E . . . . 46,000 e . . . . 30,000 O . . . . 17,000 o 9.500 

F 40,000 f 25,000 P 16,000 p 8,500 

G 28,000 g.... 22,500 Q.... 15,000 q 8,000 

H 25,000 h. ... 10,500 R 14,000 r 7,000 

1 20,000 i 10,000 S 12,000 s 6,000 

J 11,000 j 6,000 T 10,000 t 4,000 

Tot'1420,000 294,000 196,000 90,000 

26 



402 THE GROWTH OF DEMOCRACY. 

Dividing the total number of votes cast for all of the 
candidates of each party by the quota or unit of repre- 
sentation (100,000) we would have the following quo- 
tient: The Republican party, 4.2; the Democratic party, 
2.94; the People's party, 1.96; the Independent party, .9. 
Following out the provisions of section five in the bill 
above set forth, the Republican party would be entitled 
to four representatives, the Democratic party to two, 
the People's party to one. That is to say, A., B., C, and 
D. having received the highest number of votes in the 
Republican party, would be declared elected from that 
party; a. and b. of the Democratic party, and K. of the 
People's party, for like reason, would be entitled to 
certificates of election, making seven in all, determined 
by this process. The other three would be determined 
by "largest remainders." These in order of priority 
would be as follows: People's party, 96,000; Democratic 
party, 94,000; Independent party, 90,000, and the ones 
receiving certificates by this process would be L., c. and k. 
The representation from this State in the House of Rep- 
resentatives, therefore, would be as follows: 

Electors 
Seats. represented. Propor. Rep. 

Republican 4 420,000 105,000 

Democratic 3 294,000 98,000 

People's Party 2 196,000 98,000 

Independent I 90,000* 90,000 

10 1,000,000 

^Remainder. 

By this system, therefore, each party whose candidates, 
by sum total, had received votes throughout the entire 
State equal to the unit of representation would have a 
representative. Each party would have its proportional 
strength represented in the House, except as varied 
slightly by the "remainders," and if each party nominated 
ten candidates each would be represented by those can- 



PROBLEMS OF TO-DAY. 403 

didates who were the strongest in the party. It would 
appear, therefore, that this law fulfilled the conditions 
of a representative system of direct elections; that it pro- 
vided a very close approximation to "equality of voting 
strength to each elector" who participated in the elec- 
tions and equal representation of the electors in the de- 
liberative bodies of the government; that it also had in 
mind both men and parties. 

But in order to accomplish this result we have sup- 
posed that each party had nominated a full ticket. The 
bill provides that each voter shall have a right "to cumu- 
late his votes on a less number of persons in such man- 
ner as he may choose." In this appears the chief fault 
of Mr. Johnson's plan. Experience has shown that 
wherever the cumulative vote is used the party managers 
will not nominate a full ticket. They will nominate only 
such a number as they have a reasonable hope of electing. 
The effect is that most of those who are nominated by 
the machine are practically certain of election. This 
completely destroys both the independence of the voter 
and the chief purpose of an election. 

Another defect of the bill is that only one method of 
nomination is provided, that of convention, so that the 
party managers having secured control of this, the peo- 
ple would be helpless. The plan proposed by Mr. John- 
son, therefore, would be an excellent device for the pur- 
poses of the "managers," and this is one of the things 
that we are seeking to avoid. For example, suppose that 
the "machines" of the several parties had nominated can- 
didates as follows: F., G., H., I. and J. for the Republi- 
cans; g., h., i. and j. for the Democrats; R., S. and T. for 
the Populists, and s. and t. for the Independents. What 
could the people have done? The election of all but one 
of the nominees from each party would have been prac- 
tically certain, and for an elector to "scratch" his party 
candidate would have been of little avail, as the oppo- 



404 THE GROWTH OF DEMOCRACY. 

sition would have machine men as well. To be sure, the 
bill contemplates a "free ticket," but "freedom in this 
case" is almost wholly precluded by the party managers. 
The "cumulative vote with the free ticket" has worked 
very successfully in Switzerland, but there the "ma- 
chine" has not obtained as full a sway. 

A plan which aims at the correction of this fault has 
been drafted by a committee of the American Propor- 
tional Representation League, at Saratoga, composed of 
Professor J. R. Commons, Syracuse University, J. W. 
Jenks, Cornell University, and Mr. Stoughton Cooley, 
Secretary of the Association. The proposed bill was de- 
signed for elections of aldermen in the large cities. It 
reads as follows: 51 

BILL 

To establish a System of Proportional Representation 
in Cities. 

Sec. I. The members of the board of aldermen to be 
chosen at any election shall be chosen by all the voters 
of the city on a general ticket, and not by separate dis- 
tricts [or wards]. 

Sec. II. Any party or body of voters which polled 
at the last preceding city election one per centum of the 
total vote cast for the principal office filled at said elec- 
tion, or which shall present a nomination properly signed 
by voters equal in number to such percentage (or by 
the number specified in the law of the State concerned), 
may nominate a ticket or list of any number of candidates 
for said board of aldermen not to exceed the total num- 
ber of persons to be elected on said board, and the names 
of the persons thus nominated shall be printed on the 
official ballot, but so that the list of candidates nomi- 
nated by each party or body of voters shall be printed 
separately. 

Sec. III. A candidate, may be placed on several party 



11 See Corpmons, p. 119. 



PROBLEMS OF TO-DAY. , 405 

tickets, but he may choose in favor of one of them. 
All of the votes cast for him are then counted for the 
ticket chosen. In default of a choice by him the ticket to 
which he shall be assigned is determined five days be- 
fore election by lot, by the proper officer, in the pres- 
ence of official representatives of the parties or petitioners 
concerned, if they wish to appear. A candidate's name 
cannot be placed on any ticket if he makes objection 
in writing to the proper officer five days before the elec- 
tion. 

Sec. IV. Each voter shall have as many votes as there 
are persons to be elected, which he may distribute as he 
chooses among the candidates, giving not more than one 
vote to any one candidate, votes thus specifically given to 
be known as "individual votes," and each such vote shall 
count individually for the candidate receiving the same, 
and for the ticket to which the candidate belongs. In 
case a voter does not use the total number of votes to 
which he is entitled by specifying that number of candi- 
dates, the remainder of his votes to be known as "ticket 
votes" shall be counted for any ticket as a whole, pro- 
vided that he designate such ticket by title, otherwise 
only the "individual votes" shall be counted. His entire 
ballot will be void if more than one ticket is indicated 
by title. 

The voter casts his "individual vote" by marking in 
the space provided by law opposite the names of the 
separate candidates; he casts his "ticket vote" by mark- 
ing in the space provided at the head of the ticket. 

Sec. V. Judges and inspectors of election shall deter- 
mine for each precinct, and the central canvassing board 
for the city the following: 

i. The number of votes invalidated for any cause. 

2. The number of valid "individual votes" cast for 
each candidate. 

3. The number of valid "individual votes" cast for 
each party or ticket. 

4. The number of "ticket votes" cast for each ticket. 

5. The number of valid votes cast for each ticket, in- 
cluding "individual votes" and "ticket votes." 

6. The total number of all valid votes cast.. 

Sec. VI. In determining the results of the election: 



406 THE GROWTH OF DEMOCRACY. 

i. The total number of valid votes cast for all tickets 
shall be divided by the number of candidates to be 
elected; the quotient, ignoring fractions, to be known as 
the "unit of representation." 

2. The total number of valid votes cast for each ticket 
shall be severally divided by the unit of representation, 
and each such ticket shall be entitled to a number of 
aldermen equal to the quotient thus obtained, ignoring 
fractions. 

3. If the sum of such quotients be less than the num- 
ber of persons to be elected, the ticket having the largest 
remainder after the division aforesaid shall be entitled to 
an additional alderman; thereafter the ticket having the 
second largest remainder, and so on, until the whole 
number is chosen. 

Sec. VII. When the number of representatives to 
which each ticket is entitled shall have been so deter- 
mined as provided in Sec. VI, the candidates upon such 
tickets who shall have received the highest number of 
votes (not exceeding the number of representatives to 
which such ticket is entitled) shall receive certificates of 
election. In case of a tie between tickets or candidates, 
the lot decides. 

Sec. VIII. If a ticket obtains more representatives 
than it has presented candidates the number of seats re- 
maining to be filled is distributed among the other tickets 
in proportion to the votes cast for each. 

Sec. IX. When there is a vacancy in any seat, the 
candidate who has received in the general election the 
greatest number of votes after the one elected in the 
party or group within which the vacancy has occurred 
is chosen to fill it. 

A partial test of a similar plan was given by the Bel- 
gian government November 19, 1893, using the Aus- 
tralian ballot. I quote from Mr. Commons a summary 
of the result: 

The Belgian Parliament having on hand the revision 
of the constitution, determined to test the claims of the 
advocates of proportional representation by a trial elec- 



PROBLEMS OF TO-DAY. 



40? 



tion of the eighteen representatives from Brussels in 
Parliament. * * * The people of Brussels took a 
lively interest in the experiment. Meetings were held in 
various parts of the city, and the method of voting was 
explained. About 12,000 electors cast their ballots. The 
voting booths were open from 9 a. m. to 4 p. m. The 
counting of ballots was begun at once and completed 
in all the precincts in three-quarters of an hour to four 
hours' time, for from 300 to 1,940 ballots each. This 
work was found to be not at all complicated, and was 
done as easily and rapidly as in the ordinary elections. 
The work of the Central Bureau began at 5:30 p. m., and 
the returns from the several precincts were added up as 
rapidly as they came in. * * * The party votes were 
the following: 



Party- 
Moderates 
Progressists .. 
Socialists .... 
Flemish-Dem. 
Independents 
Catholics ...... 



Ticket 
ballots. 

• 546 X 
. 2,013 X 

• 5,748 X 
. 1,127 x 
. 411 X 

• 972 x 



Ticket 
votes. 

9,828 + 

36,234 + 

103,464 + 

20,286 + 

, 7.398 + 

17,496 + 



Mixed 

votes. 
1,865 = 
3.278 = 
3.217 = 
1.427 = 
1,027 = 
1,909 = 



Total 
votes. 

11,693 

39.512 
106,681 

21,713 
8,425 

19.405 



10,817 X 18 = 194,706 + 12,723 = 207,429 



Applying the proposed American plan to the distribu- 
tion of seats, the result would be as follows: The total 
number of votes, 207,429, divided by 18, gives 11,523 as 
the unit of representation. Dividing the party votes by 
this unit provides for fifteen representatives ; the remain- 
ing three are assigned to the parties having the largest 
remainders. 



Total 
Party — vote. 

Moderates 11,693 

Progressists .. .. 39,512 

Socialists 106,681 

Flem. Democrats 21,713 
Independents .... 8,425 
Catholics 19,405 



Unit 
of rep. 




Remainder 


Seats. 


11,523 = 
n,523 = 
n.523 = 
n.523 = 
11,523 = 
n.523 = 


1 
3 
9 
1 

1 


+ 170 
+ 4.943 
+ 2,974 
+ 10,190 
+ 8,425 
+ 7.882 


= 1 
= 3 
= 9 
— 2 
= 1 
= 2 



IS 



408 THE GROWTH OF DEMOCRACY. 

While such a system would, without doubt, be a 
marked improvement over the present systems, or the 
system proposed by Mr. Johnson, of Ohio, still it would 
not wholly eliminate the evils that might arise from the 
cumulative feature in the "party ticket." The retention 
of this feature would furnish an inducement for the party 
managers to nominate only such a number as they might 
hope to elect. Therefore there would be little of choice 
remaining within the party or without, and a nomination 
secured by manipulating the primaries would still 
amount to an election. The system under consideration 
might secure proportional representation in the delib- 
erative branches of government, but it would not be 
adapted to securing men of ability and integrity to the 
public trust — men who were not primarily the tools of a 
ring or machine. 

The first step in a popular election is the nomination of 
candidates. Here our work of reform and here the ap- 
plication of any successful device for securing good men 
must begin. To this end the following plans of nomina- 
tion are suggested: 

First, where a party convention is not necessary and 
a "primary" alone will suffice to make the necessary 
preparations for a final election, that the "limited ballot" 
be used in the nominating or primary election. Ex- 
perience has shown that in a final election the "limited 
ballot" does not secure good results; while it gives mi- 
nority representation it also gives the election, in each 
party, to the machine men. 12 That is if, as in Boston, 
in 1894, twelve aldermen were to be elected "at large," 
each voter being allowed to vote for seven candidates 
only, the machines of each of the leading parties would 
nominate only seven candidates, and then concentrate 
all their energies to elect these. The result would be 

12 See page j 30 1. 



PROBLEMS OF TO-DAY. 409 

that there would remain little chance for anti-machine 
candidates being elected. But for the same reason that 
the "limited ballot" has been a failure in the final election, 
it would appear to be an excellent device for the pur- 
poses of, a primary. When used in the final elections the 
strength of each party would be so directed and con- 
trolled that those places not filled by the machine men of 
one party would be filled by the machine men of the 
other party. When used by a single party for the pur- 
poses of nominating candidates, however those places 
not filled by the machine men would be filled by anti- 
machine or independent candidates, and if the voter were 
allowed to vote for only half as many candidates as 
there were places on the ticket to be filled then the 
machine men could not get more than one-half the places 
on the ticket. This would give the electors of the party 
an opportunity for choice between "good" and "bad" 
candidates in the final election. If, then, we require each 
party to pursue this method of nominations not more 
than half of the candidates on any ticket would be of the 
ring. Xaking the ordinary case in which the strength 
of each of the two leading parties is about equal, if we 
give to each party its proportional strength, each would 
elect about one-half of the officers to be elected at the 
final election, and if by use of a "free ticket" under the 
Australian system, the anti-machine candidates of the 
parties received stronger support from the electorate than 
the machine men received, all of the offices would be 
filled by anti-machine or independent candidates. At 
the same time the party lines and issues would be re- 
tained as a means of expressing popular sentiment and 
instructing representatives on the questions of the day. 
We will suppose, for example, that there are ten con- 
gressmen to be chosen "at large" from the State of Illi- 
nois, that in the primary election held by each party, 
each partisan elector was restricted to one vote from 



410 THE GROWTH OF DEMOCRACY. 

each of five "candidates for nomination" by his party, 13 
and that the ten having the highest number of votes at 
the primary be considered as the regular nominees. Then 
the machine, if there be one, could not nominate more 
than five of the ten candidates, while the other five would 
be filled by other opposition or anti-machine candidates. 
In case the primary election law required that only those 
candidates nominated according to its provisions might 
have their names placed on the official ballot, we would 
have in each party represented ten nominees for as many 
offices to be filled. Holding the final election under the 
Australian ballot system and giving to each elector the 
opportunity of voting for whomsoever he would, i. e., a 
"free ticket," those candidates of each party which had 
the largest popular support would stand at the head of 
the ticket in his party. If, then, we used the plan pro- 
posed by Mr. Johnson, or Mr. Commons, in making 
the count 14 we would secure the two ends so desirable 
in elections: (i) We would secure a representation in 
the deliberative bodies proportional to the strength of 
the party divisions; (2) we would have as representa- 
tives of those parties the men who had the greatest 
strength in their party, i. e., those who were in highest 
popular favor. 

It is thought that proportional representation under 
such a system of popular nominations and direct election 
would accomplish the following results: 

1. It would give to each constituency which is of suf- 
ficient strength for recognition a representation in the 
legislative or deliberative bodies of the government pro- 



13 That is, supposing that each voter were allowed to vote for 
five candidates only. 

14 Proportional representation, as presented, means nothing 
more than so counting the votes that each party will have its 
proportional strength and that the leading candidates of each 
party shall represent the parties in that proportion, 



PROBLEMS OF TO-DAY. 411 

portional to the strength of such constituency, 15 as a re- 
sult of which the sentiment of the people would be rep- 
resented in and impressed on the governing bodies. 

2. It would prevent the exaggerated influence of suc- 
cessful parties in government as it exists at present under 
majority and machine rule. 

3. It would destroy machine rule in nominations and 
elections, by preventing "gerrymandering," by making 
futile efforts to concentrate forces in critical districts, by 
minimizing the inducement to use money, fraud, deceit, 
misrepresentation and other subversive tactics as a means 
of obtaining votes. 

4. It would give the greatest possible independence 
and equality to the voters. 

5. It would give the greatest possible force to inde- 
pendent citizen movements. 

6. It would place the most prominent men in the 
party in office — would bring the greatest statesmen to 
the front instead of the "party boss." 

7. It would make the political party a true instru- 
ment of political expression, and party success a means 
of promoting the general welfare instead of a device for 
distributing spoils. 

But nominations by primary election alone are not 
always practical. In nominations for State and national 
elections the constituencies are large. It is often desir- 
able to frame issues and get a representative expression 
on leading men from different parts of the State or nation 
as candidates. For this purpose conventions are often 
found necessary. The convention system, however, in 
its present form is subject to many abuses. The plan 
of nominations here suggested where conventions are 
thought necessary is set forth in the appendix. 



x p Each constituency which had the required number to be 
entitled to representation under the law. 



412 THE GROWTH OF DEMOCRACY. 



III. 

As to the third condition which is adverse to the gen- 
eral welfare — that of the employment of the spoils system 
in appointments — enough has already been said in the 
preceding chapter and this. This evil is bound to go 
with the adoption of the "merit system" and the enact- 
ment of laws guaranteeing "equality" in election. 



IV. 

The fourth adverse condition — that of the corruption 
of our legislatures — is most serious; one that has caused 
us much anxiety in the endeavor to perfect our plan of 
government. What are the causes to be assigned for 
this political disorder? What are the forces which are 
at work, and what the purpose of their activity? 

The forms in which legislative corruption may be 
stated are as follows: The practices employed (i) in the 
election of United States senators; (2) in the "gerry- 
mander;" (3) in special legislation; (4) in obtaining spe- 
cial grants of power and franchise for corporations; (5) 
in the disposition of public property; (6) in procuring 
appropriations; (7) in incurring indebtedness for public 
works and the letting of contracts therefor; (8) in laws 
for taxation. What are the means that may be em- 
ployed to protect the State against these various forms 
of corruption? How can we adapt our system to the 
demands of the general welfare in such matters? 

For the first — i. e., corruption of legislatures growing 
out of the election of United States senators — the direct 
election of these officers by the people of the State offers 
a remedy. 

For the second — the "gerrymander" — the election of 



PROBLEMS OF TO-DAY. 413 

the State legislature by a general ticket under a system of 
proportional representation would act as a specific. 16 

For the third form of legislative corruption — that of 
obtaining of special legislation in the interests of spoils 
— the adoption of such constitutional provisions as those 
found in the constitution of Montana would seem suffi- 
cient. This constitution, after specifically enumerating 
about thirty-six subjects in which special legislation is 
prohibited, added the saving clause: "In all other cases 
where a general law can be made applicable no special 
law shall be enacted." 17 Since the adoption of the many 
provisions set forth in Chapter XIV, restricting special 
legislation, the States have suffered little on this account, 
but in the national legislature it has been one of the 
chief sources of abuse. A large part of the patronage 
is distributed, and the public treasury is being constantly 
invaded by this means. Such a provision as that re- 
ferred to above is imperatively demanded in our federal 
system. 

As to the fourth form of legislative corruption — that 
of obtaining special grants and privileges under charters 



16 It is suggested that the nomination of candidates for State 
representatives might be made from districts, as at present, using 
the "limited ballot" at the primaries. This would insure sec- 
tional representation. But the nominations having come from 
the district the candidates should be voted on by the people of 
the entire State, thus insuring the election of the most reputable 
men nominated from the district and avoiding the district or 
ward methods. The legislature is a body of State officials, for 
purposes of expediency, made up of representatives drawn 
from different districts. Provisions having been made in the 
nominating system for the representation of the interests of the 
different districts, there is no reason why the people of the State 
should not have the right to determine which of the nominees 
proposed by the districts shall serve and bind them. The repre- 
sentative does not merely bind his district; he, by his acts, 
binds every citizen in the State; he exercises powers upon 
which there can be but comparatively few checks. The legisla- 
ture is largely a law unto itself and the maker of laws for the 
State. Why should not the people of the State have the final 
choice of their legislative agents? 

17 See supra, p. 351. 



414 THE GROWTH OF DEMOCRACY. 

of incorporation — some of the States have already 
evolved an effective means of security wherein the term 
of years for which a charter may be granted is limited, 
and the legislature has reserved the power to alter, 
amend or revoke the charter whenever the exercise of 
any corporation or corporate powers granted become 
detrimental to the interest of the commonwealth or its 
citizens. It only remains for like provisions to be 
adopted by all of the States in order to give the protec- 
tion desired. Or if at any point these provisions should 
fail by reason of the character or quality of the legisla- 
tures, such a defect could be cured by making the gen- 
eral law authorizing charter grants the subject of refer- 
endum. This would be a very proper use of the refer- 
endal device, as a company on being incorporated is en- 
dowed with certain sovereign powers, and any law for the 
disposition of sovereign rights or public property should, 
on principle, be referred to the people for ratification. 

The corporation could have little inducement to cor- 
rupt the legislature and maintain a lobby there, if the 
results of that corruption, the special privileges obtained, 
were liable to be altered or amended or revoked at the 
next session in case they were found adverse to public 
interest. It would gain nothing by maintaining a lobby, 
or even by securing the selection of favorable legislators, 
if the laws passed providing for corporate grants and 
franchises must be submitted to the people. Of what 
avail would the efforts of the street car magnates at 
Springfield during the last session have been if such pro- 
visions as those set forth above had been in the con- 
stitution of Illinois? The money spent for the passage 
of the Humphrey and Allen bills would have been to 
little purpose, and in any event the corporate privileges 
could not have been extended over more than twenty 
years. 

The first provision above set forth, however, may at 



PROBLEMS OF TO-DAY. 415 

times be thought objectionable because of the uncer- 
tainty which it gives to investment. While it might never 
be used in a manner detrimental to the interests of the 
investor, the fact that there is a possibility of its being 
so used has stood forth as an obstacle to its employment. 
This objection has been completely overcome and at the 
same time the public interests secured by a device which 
has been successfully used in some of the European 
countries in the case of railroads, telegraphs and other 
quasi-public corporations. This device is such that the 
road-beds, the tracks, the rights of way, and all of the 
fixed improvements of such corporations shall, at the 
expiration of the term of incorporation, belong to the 
State, and thereafter these properties may be leased or 
operated by the State in such manner as may be deemed 
to be to its best interests. This provision makes the 
private corporation the direct agent of the public wel- 
fare, and has been one of the most wholesome develop- 
ments of the century. 18 

For the fifth form of legislative corruption — that of 
the disposition of public property — experience has dem- 
onstrated that sufficient protection is found in constitu- 
tional provisions requiring such matters to be submitted 
to a vote of the people. 19 Such provisions should be- 
come general in our constitutions. 

The sixth — that of procuring appropriations — has 
found correctives in various forms. 20 The principal 
source of this evil, at present, is in "log-rolling." Each 
member of the legislature has some particular object, 
personal or local, for which he seeks government aid. 



18 The device used in England is one giving to the public the 
right to purchase the plant of the company at the then present 
value of material, exclusive of profits, franchise, etc., at the 
expiration of twenty-one years after the first charter grant and 
at the expiration of each seven years thereafter. See Ap- 
pendix II. 

19 See supra, p. 222, 20 See supra, p. 321. 



416 THE GROWTH OF DEMOCRACY. 

In order to get his particular appropriation passed, it is 
necessary to pledge his support to the appropriations 
asked for by a sufficient number of other members to 
make a majority vo'te. This practice of mutually pledg- 
ing support as a means of obtaining personal or local 
ends is called log-rolling. The river and harbor appro- 
priations of the national government afford a most ex- 
cellent example of its vicious results. By this form of 
appropriation plunder is distributed to each congress- 
man or group of congressmen as a means of patronage, 
and very often without even the semblance of need for 
such improvements. The best specific remedy that we 
have so far discovered for the evil is that employed by 
many States whereby the executive is authorized to veto 
such items of an appropriation bill as the public inter- 
ests demand, and to allow the other items to stand and 
become a law. The constitution of Wyoming, for ex- 
ample, has the following provision: 21 

"The governor shall have power to disapprove of any 
item or items or part or parts of any bill making ap- 
propriations of money or properly embracing distinct 
items, and the part or parts of the bill approved shall be 
the law, and the item or items and part or parts disap- 
proved shall be void unless enacted in the following 
manner: If the legislature be in session he shall trans- 
mit to the house in which the bill originated a copy of 
the item or items or part or parts thereof disapproved, 
together with his objections thereto, and the items or 
parts objected to shall be separately reconsidered, and 
each item or part shall then take the same course as is 
prescribed for the passage of bills over the executive 
veto." 

If President Cleveland had had such a power, in 1896, 
Congress would not have foisted on the country the river 
and harbor bill vetoed by him. By the constitution of 



21 Constitution 1889, Ch. IV, Sec. 9. 



PROBLEMS OF TO-DAY. 417 

the United States the President must veto or approve 
each act as a whole. The nature of the bill vetoed by 
the President, June, 1896, cannot be better set forth than 
by the following extract from the message accompanying 
its return: 

There are 417 items of appropriation contained in this 
bill, and every part of the country is represented in the 
distribution of its favors. It directly appropriates or 
provides for the immediate expenditure of nearly $14,- 
000,000 for river and harbor work. This sum is in addi- 
tion to appropriations contained in another bill for simi- 
lar purposes amounting to a little more than $3,000,000, 
which has been already favorably considered at the pres- 
ent session of Congress. The result is that the contem- 
plated immediate expenditures for the objects men- 
tioned amount to about $17,000,000. A more startling- 
feature of this bill is its authorization of contracts for 
river and harbor work amounting to more than $62,- 
000,000. * * * If, therefore, this bill becomes a law, 
the obligations which will be imposed on the govern- 
ment, together with the appropriations made for imme- 
diate expenditure on account of rivers and harbors, will 
amount to about $80,000,000. Nor is this all. The bill 
directs numerous surveys and examinations which con- 
template new work and further contracts, and which por- 
tend largely increased expenditures and obligations. 

* * * Many of the objects for which it appropriates 
public money are not related to the public welfare, and 
many of them are palpably for the benefit of limited lo- 
calities or in aid of individual interests. * , * * I 
learn from official sources that there are appropriations 
contained in the bill to pay for work which private par- 
ties have actually agreed with the government to do, 
in consideration of their occupancy of public property. 

* * * The public treasury will be confronted with 
other appropriations, made at the present session of 
Congress, amounting to more than $500,000,000. * * 

* I hope I may be permitted to suggest at a time when 
the issues of government bonds to maintain the credit 
and financial standing of the country is a subject of criti- 
cism, that the contracts provided for in this bill would 

27 



418 THE GROWTH OF DEMOCRACY. 

create obligations of the United States amounting to 
$62,000,000 no less binding than its bonds for that sum. 

Suppose that the constitution of the United States had 
contained such a provision as that above set forth from 
the constitution of Wyoming; suppose that the Presi- 
dent had vetoed all such items as seemed to him local, 
personal, or in payment for obligations of private par- 
ties due to the government for use of public properties, 
and suppose again that each of these vetoed items had, 
under the provision, come up as a separate bill, the 
President could have so aroused the public by his various 
veto messages in case Congress had dared to pass them 
separately, that to have voted for one of them would 
have resulted in political suicide. By making each of 
the vetoed items individual bills the selfish interest in- 
volved in a "log-rolling ' scheme is eliminated, and the 
"itemized" veto becomes a most useful power in the 
hands of the executive to check this form of corruption. 
And there will be every inducement on the part of the 
executive to use it, for he would then be held responsible 
personally for each item of an appropriation bill. Joint 
resolutions providing for amendments to the constitution 
of the United States so as to give the President this 
power were introduced into the house by Messrs. Stan- 
forth, of Colorado, 22 and Maxwell, of Nebraska, 23 after 
the passage of this bill over the head of President Cleve- 
land, but the house simply buried them both in the judici- 
ary committee, and they have not been heard of since. 
Other effective means have been employed by the 
States, 24 but the adoption of the one above proposed 
would do much to eradicate the evil and complete the 
adaptation of that part of our system to conditions of 
general welfare. 



22 April 7, 1897, H. R., 48. 2i See supra, pp. 321-4. 

23 July 12, 1897, H. R., 74- 



PROBLEMS OF TO-DAY. 419 

For the seventh form of legislative corruption— that 
associated with the incurring of indebtedness for public 
works — the referendum has proven an adequate remedy. 
The public work proposed, which entails the incurring of 
a public debt, should be submitted to a popular vote 
for an expression as to whether it will be undertaken and 
at what cost. If a State improvement then the matter 
would be submitted to the State; if a county affair then 
to the people of the county, etc. The extension and per- 
fection of the merit system in the civil service is also 
essential to all public works. They require technical 
knowledge and an identification of the business of the 
civil servant with the business of the public. This can- 
not be obtained through the shifting spoils system. 

The eighth subject of corruption — as found in the pas- 
sage of laws for taxation — presents greater difficulties 
than any of the others, for the reason that we have not 
yet worked out, in fact the world at large has not yet 
worked out, a system of taxation that is satisfactory. 
All of the systems in vogue are in a measure inequitable. 
The remarkable economic development of the last cen- 
tury, the change in the forms of wealth and taxable prop- 
erty during the last fifty years, the broader co-operative 
organization by which the economic foundation often 
goes beyond the limits of the tax jurisdiction (the State) 
many times including several such jurisdictions, makes 
the difficulty of applying the principle of democratic jus- 
tice, or taxation in proportion to ability to pay, very 
great. 

One of the chief obstacles to the successful applica- 
tion of principles of justice and equality in taxation, the 
condition which renders the problem most difficult, is the 
manifest disposition on the part of the wealthy classes, 
those who so largely possess these new forms of wealth, 
to evade their just burdens, and to thwart every attempt 
at a fair adjustment. Ex-President Harrison, in a recent 



420 THE GROWTH OF DEMOCRACY. 

address before the Union League Club of Chicago, 25 
most forcibly portrayed this condition. His language 
was in part as follows: 

For very many years an opinion has been prevalent 
that the great bulk of personal property of the States, 
especially of the class denominated "securities," includ- 
ing stocks, bonds, notes, mortgages and such like, has 
escaped taxation. With very few exceptions the great 
fortunes of this country are invested in such securities. 
Recent investigations by students of political science, and 
recent tables prepared by State tax officials, have dis- 
closed an appalling condition of things. The evil seems 
to have been progressive, until in some of our great 
centers of population and wealth those forms of property 
seem to have been almost eliminated from the tax list. 
Comptroller Roberts of the State of New York states 
that from $2,500,000,000 to $3,000,000,000 of personal 
property taxable by law in New York escapes taxation 
every year. 

In 1874 the board of State assessors of New York re- 
ported to the legislature, "From our examinations we are 
satisfied that less than 15 per cent of the personal prop- 
erty of the State liable to taxation finds a place on the 
rolls of the assessor. The amount of personal property 
assessed in some of the counties is less than the banking 
capital, and the same is true of thirty towns and cities, 
among which are some of the most prosperous in the 
State." In 1892 the board reported: "Laws for the as- 
sessment of personal property have failed to do their 
work, and the failure becomes more complete and more 
unjust with every successive year." 

The report of the revenue commission of Illinois for 
1886 discloses that practically the same state of things 
exists in your State. Indeed so glaring and outrageous 
is this withholding of personal property from the tax list, 



25 The Union League Club is one of the most wealthy organ- 
izations in the city of Chicago. The address from which we 
quote was delivered on the anniversary of Washington's birth- 
day, 1898, as an admonition to men of wealth as to their duties 
to the government and to themselves by virtue of their depend- 
ence on the security of government in the enjoyment of their 
property. 



PROBLEMS OF TO-DAY. 421 

and the inequalities between the counties of your State 
resulting from this practice, that I notice the labor com- 
mission of Illinois recommends the abandonment of the 
attempt to collect taxes upon personal property. The 
statements which are attributed by the bureau of labor 
to eminent citizens of Chicago as to tax conditions are 
appalling. 

Prof. Bemis, in a recent letter in the Independent, 
speaking of affairs here in Illinois, and of some revela- 
tion made by your Taxpayers' Defense League, drew a 
comparison between the commercial agency ratings and 
the tax list, and gave this instance: "A certain banker, 
rated by Bradstreets" among the millionaires, is assessed 
at $1,200, or less than 1 per cent of his personal property, 
while a poor woman, Mrs. McGuire, is assessed on her 
real estate at 23 per cent of its value. The question 
naturally arises, "How long will there be any respect for 
government or law, if these things are allowed to con- 
tinue?" In conclusion he says: "A great awakening 
all over the country is needed, and that speedily, in order 
that the people may appreciate the enormity and injustice 
of existing methods of State and local taxation, and may 
be impelled to effect changes that shall make of the State 
an instrument of righteousness rather than what it is 
now in this matter of taxation — a conniver at fraud and 
creater of inequality." 

Taxes are a debt of the highest obligation, and no 
casuist can draw a sound moral distinction between the 
man who hides his property or makes a false return in 
order to escape the payment of his debt to the State, and 
the man who conceals his property from his private 
creditors. Nor should it be more difficult to follow the 
defaulter in the one case than in the other. If our taxes 
are farmed out to an individual or to a corporation they 
would be collected. There would be a vigilant and unre- 
lenting pursuit. The civil and criminal processes of the 
law would be invoked with effect, just as they were 
against fraudulent debtors under the bankrupt law. Is 
it not possible to secure public officers who will show 
the same activity? 

When to this enormous and crying evil is added the 
corruption which it is alleged characterizes the appraise- 



422 THE GROWTH OF DEMOCRACY. 

nient of real estate in some of our great cities, we have 
a condition of things with which we dare not falter. We 
must inaugurate, and at once, a system that shall equalize 
tax burdens. The men of wealth in our great com- 
munities should lead the movement. This great club, 
organized as a rallying center for loyalty and patriotic 
citizenship, should hear a call as loud and imperative 
as that which came to its members during the years of the 
civil war. 

Mr. Lincoln's startling declaration that the country 
could not continue to exist half slave and half free, may 
be paraphrased to-day by saying that the country can- 
not continue to exist half taxed and half free. This in- 
equality breeds a fierce and unreasoning anger, creates 
classes, intensifies social conditions, and tends to make 
men willing to pay their debts in 50 cent dollars. 

The spirit of discontent is rife. The farmer, the man 
of moderate circumstances, has unfailingly and unfalter- 
ingly rallied to suppress mob violence and to preserve 
the peace of our communities. These men are not 
agrarians or socialists or anarchists or covetous of other 
men's goods, but they will not, and ought not, permit 
the tax burdens upon their smaller properties to be 
doubled by the evasions and frauds of the holders of 
these intangible securities. 

As shown by Mr. Harrison: 

The great bulk of our people are lovers of justice. 
They do not believe that poverty is a virtue or property a 
crime. They believe in equality of opportunity, not of 
dollars. * * * Equality is the golden thread that runs 
through the fabric of our civil institutions, the dominant 
note in the swelling symphony of liberty. And as a corol- 
lary, necessary and imperative, to this doctrine of an 
equality of right is the doctrine of a proportionate and 
ratable contribution to the cost of administering the gov- 
ernment. It is a part of our individual covenant as citi- 
zens of the State that we will, honestly and fully, in the 
rate or proportion fixed from time to time by law, con- 
tribute our just share to all public expenses. A full 
conscientious discharge of that duty by the citizen is 



PROBLEMS OF TO-DAY. 423 

one of the tests of good citizenship. To evade that duty 
is a moral delinquency, an unpatriotic act. 

When we consider that the forms of property held by 
the wealthy classes are, more than any other, depend- 
ent for their value on the maintenance of the estab- 
lished order of society, that any general disturbance 
or popular uprising which threatens this foundation, 
often causes these securities to become worthless; when 
we further consider that the peaceable use and possession 
of all property must of necessity depend on government, 
and that all forms of credit are so largely dependent on 
strict integrity, it seems most foolish for these classes 
to avoid the expense necessary to maintaining order, 
and to be the ones to teach the lesson of infidelity. When 
we consider that they are the ones who have been most 
liberally endowed with the benefits which flow from good 
government and with the means of satisfaction, it is a 
short-sighted policy for them to refuse to contribute to 
the government in proportion to .these blessings, and 
the means which they enjoy by virtue of its maintenance. 
It has been suggested that unless, by peaceable means, 
there is an equitable adjustment of taxation according 
to ability to pay, there will be a revolution. However 
true this may be, the wealthy classes are not strength- 
ening their own position by tax evasions. They owe a 
duty to society which cannot be neglected. If they 
would take as active a part in the solution of the problem 
of taxation according to ability to pay as they have in 
thwarting every effort to this end, the problem would 
not be difficult. 

V. 

The fifth condition which confronts us,, which stands as 
a menace to our institutions — the subversion of munici- 
pal government in the interest of organized spoliation, 
is the last which we have to consider. Under our pres- 



424 THE GROWTH OF DEMOCRACY. 

ent system nearly every department of municipal govern- 
ment is perverted to this end. 20 The regular nominat- 
ing, electoral and appointive devices are utilized as a 
means of controlling the exercise of the functions of gov- 
ernment and for obtaining official salaries. The admin- 
istrative, judicial and legislative departments are manipu- 
lated for "spoils." 

The first strategic point in a campaign for "spoils" is 
that of control over nominations. By the present nomi- 
nating devices the faction which is successful in this is 
the one that controls the party. The force against 
which the people must protect itself in nominations as 
well as elections is the "machine." How can the elec- 
tors of a party avoid being controlled by organized place 
hunters? So far their only means is to form, and offi- 
cer, a counter organization which can assert itself with 
greater force. Occasionally this is done, but no sooner 
does the party fall under the control of the new organi- 

26 Andrew D. White, "in an article entitled "The Government 
of American Cities" — The Forum, December, 1890 — represented 
the condition as follows: 

"Without the slightest exaggeration we may assert that, with 
very few exceptions, the city governments of the United States 
are the worst in Christendom, the most expensive, the most inef- 
ficient, and the most corrupt. No one who has anv consider- 
able knowledge of our own country and of other countries can 
deny this. * * * 

"The city halls of these larger towns (i. e., New York, Phila- 
delphia, etc.) are the acknowledged centers of the vilest corrup- 
tion. They are absolutely demoralizing, not merely to those 
who are under their sway, but to the country at large. Such 
cities, like the decaying spots in ripe fruit, tend to corrupt the 
whole body politic. As a rule the men who sit in the councils 
of our large cities, dispensing comfort or discomfort, justice 
or injustice, beauty or deformity, health or disease, to this and 
to future generations, are men who in no other countries would 
think of aspiring to such positions. Some of them, indeed, 
would think themselves lucky in keeping outside of prisons. 
Officials entrusted with the expenditure of the vast wealth of 
our citizens are frequently men whom no one would think of 
entrusting with the management of his private affairs, or, indeed, 
of employing in any capacity. Few have gained their positions 
by fitness or by public service; many have gained them by 
scoundrelism, some by crime." 



PROBLEMS OF TO-DAY. 425 

zation than its leaders themselves, seeking to perpetuate 
their own control, become a menace to good govern- 
ment. 27 We must adopt a device for nominations that 
will take the control over the electorate out of the hands 
of such organizations and place party nominations on a 
free choice of the electors of the party, regardless of a 
political machine. For the accomplishment of this end, 
in the election of municipal officers, the devices set forth 
above pp. 408 to 411 and below pp. 511 to 514 are sub- 
mitted. 

Take for example the city of Chicago. Let each of the 
thirty-four wards choose four delegates to a city con- 
vention by means of a "limited ballot," giving each elec- 
tor of a precinct the privileges of voting for two candi- 
dates only. Then let the four candidates having the 
highest number of votes for delegate be the representa- 
tives of the ward in the city convention. When the con- 
vention shall have met let them proceed to- ballot on 
the leading men of the party for candidates for mayor 
until one of them shall have received a majority vote, 
then let this one and the one having the next highest 
vote on the same ballot be declared to be the candidate 
of the party for nomination for mayor. A double list of 
candidates for each office having been selected in this 
manner, then let this double list of candidates be sub- 
mitted to all of the^ electors of the party in the city at 
large. 28 By providing that the names of only such as 

27 A very conspicuous example of this is found in Tammany 
Hall, an organization which was at first organized for laudable 
purposes, and which took a stand for good government in oppo- 
sition to the arbitrary measures of the opposition. On attain- 
ing power, as a means of perpetuating the control of its leaders, 
it became a most dangerous political machine, operated in the 
interest of spoils. 

28 The double list should be submitted to all of the electors 
of the. party in the city' at large, as each officer, though he may 
be chosen from and represent a ward, is an officer for the whole 
city and binds the municipality by his acts. By this method, 
while each ward will take the initiative in presenting the names 



426 THE GROWTH OF DEMOCRACY. 

might be nominated in this manner 20 shall be placed on 
the official ticket, each of the parties would be com- 
pelled to employ the method prescribed. 

The nominations having been made as above set forth, 
the names of the various candidates might be placed on 
one ticket, each party having the names of its candidates 
printed in separate columns, and the Australian system 
of voting employed. The law might also require that 
the candidates for aldermen from the various wards 
should be balloted on by the party electorate of the whole 
city, so that the whole electorate of the party would par- 
ticipate both in the nomination and election of ward rep- 
resentatives. By this or some similar plan the people 
could effectively protect themselves from the use of the 
machinery of nominations and elections as a means of 
subverting their municipal government; and not only 
protect themselves, but also have a device whereby those 
best fitted to serve might be put into public service. 

Relative to the appointing power, we have already 
found a solution in the merit system, in so far as it has 
been applied. 

In the judicial department, the police and justice courts 
are the only ones against which serious complaint is 
lodged. In order to overcome the vicious character of 
these courts, their election might be by the same method 
as that proposed for aldermen. To nominate, let the 
party electors of each judicial or administrative district 
entitled to a police or justice court vote for twice as many 
candidates as there are places to be filled, using the "lim- 
ited ballot." For example, we will suppose that the 
South Town of Chicago is entitled to two justices 
and two constables. At the same primary election at 

of candidates to represent it in the council, the nomination will 
be made from the names presented by a majority of the party 
electors of the whole city. 

29 Such a requirement is the only effective way of enforcing 
primary election laws upon parties. 



PROBLEMS OF TO-DAY. 427 

which delegates are chosen to a city convention let the 
electors of the South Town select four candidates for 
justice and four candidates for constable, each elector 
having the right to vote for two candidates for each, the 
four having the highest number of votes being the can- 
didates for party nomination. Then at the time when the 
double list of party candidates is submitted to the party 
electorate of the city let the electors of the party, by a 
majority vote, determine which two candidates for jus- 
tice and which two for constable shall be the party nom- 
inees. 30 This would take the justices and constables out 
of ward politics, take them out of the hands of the ma- 
chine, and make them responsible to the people. 

As to the local officers of the South Town, such as as- 
sessor, collector, town attorney, etc., these might be nom- 
inated by the same system and at the same time, except 
that the double list would be submitted to the electors of 
the South Town only, and in the final election the nomi- 
nees would be balloted on by the town as at present. 

The legislative department of municipal government, 
by its structure, should provide for two elements of rep- 
resentation. It should be a body with an eye to the wel- 
fare of the city at large; it should also be representative 
of the various wards or sections of the city. In order to 
secure these ends many of the lare-e cities have adopted a 
plan where a part of the councilmen are from the city at 
large and a part from the wards. Applying this plan to 
the city of Chicago, which at present has a unicameral 
council of 68 members, two from each ward, we might 
have 34 members — one from each ward — chosen from 
the wards, and 34 chosen from the city at large by the 
method proposed above. If such a system were in vogue 
such men as the recently elected aldermen from the First 



30 The justices and constables should be nominated and elected 
by the electors of the entire city for the reason that they are 
in a large measure servants of the entire city. 



428 THE GROWTH OP DEMOCRACY. 

and Nineteenth wards could scarcely survive; or if, by 
some miscarriage they managed to get elected to a seat 
in the council they could have little weight in the delib- 
erative body. A man who had made a good record 
would stand on such a high level before the people of the 
city that the municipal elections in the United States, as 
in England, would resolve themselves into contests over 
seats only where the people were dissatisfied. 31 

The council body itself having been elevated above the 
level of ward politics, the next problem is that of prevent- 
ing the exercise of its powers for corrupt ends. The 
causes for the corruption of municipal councils are appar- 
ent. The drift of modern society has been toward the large 
city. Modern invention, specialization, the division of la- 
bor in the interest of economy, the massing of capital in 
the hands of the entrepreneur class, the development of 
institutions, all tend toward the same end. With these 
new adaptations, the "uses" subject to public control, such 
as highways, streets, canals, etc., have become constantly 
more valuable for economic ends. It has been found of 
increasing economic advantage for society to have water, 
light, transportation, the means of rapid communication, 
etc., supplied by specialized agents, and to give to these 
specialized agents, as a necessary condition of success, 
the use of public ways and properties subject to public 
control. The specialized agents most available and 
which, under conditions present, could operate to the 
highest economic advantage of society have been private 
or quasi-public corporations. 32 

31 In England it usually happens that if the people are well 
satisfied with an alderman no other nomination will be made — 
that no one thinks of contesting a seat unless he can find some 
issue upon which to base opposition to the incumbent. 

32 The private or quasi-public corporation in the past has been 
able to render these services with greater economy to society 
by reason of the fact that, although their prime object has been 
private gain, and the incorporators have derived immense reve- 
nues from the public, yet they have been organized on such a 



PROBLEMS OF TO-DAY. 429 

This accounts for the fact that most of our municipal 
corruptions have had associated with their growth the 
modern private corporation. While the private corpora- 
tions have 'rendered a very great service to society by 
conforming to conditions necessary for broad co-opera- 
tion and great economy of effort and resources, yet, by 
reason of the greater economic advantages which they 
have offered to society and the increased public patron- 
age by them received as a consequence, the opportunities 
for profit to the incorporators have proportionally in- 
creased. As the opportunities for profit have increased 
the privilege of using the streets and public ways, as a 
condition necessary thereto, has become more valuable; 
and this has been especially accentuated where the grants 
obtained were in the nature of monopolies. 

The power to grant such privileges, as well as to fix 
the terms of the grant, being in the hands of the city 
council, under our present system, the "use" of every 
street in the city becomes an inducement held out by the 
public to corrupt the council as a means of securing fa- 
vorable grants. To illustrate, we will take another ex- 
ample from the city of Chicago. In 1885 there resided 
in this city a young man, a stock broker, whose chief 
stock in trade was his unbounded energy. Seeing the 
value of an improved and more extended system of street 
railways, he secured an option on one more than one-half 
of the shares of each of two of the leading companies — 
the North Chicago City Railway Company and the old 
Chicago West -Division Railway Company. Having se- 
cured, an option for the purchase of a controlling interest 

basis as to provide for broad co-operation and the greatest 
economy of effort, while the public agencies have been on such 
a basis as to make broad and economic co-operation impossible. 
Such matters require high specialization and minute division of 
labor. The private concern made provision for this, v/hile the 
public agency not only failed to make such provision, but, being 
controlled by a spoils organization, used every means of prevent- 
ing it. 



430 THE GROWTH OF DEMOCRACY. 

in these companies at a stipulated price, 33 he then pro- 
cured from the city council some very favorable fran- 
chises for improvement and extension. With these op- 
tions and franchises he then bonded his rights for enough 
to pay all obligations under the option, make all neces- 
sary improvements and extensions, and to make himself 
a millionaire. 

Ten years afterward, through having obtained new 
franchises for companies which were incorporated for the 
purpose of holding and using them, and then borrowing 
money on the grants made by the city, his companies 
were in control of about 295 miles of electric, 48 miles of 
cable and 23 miles of horse car lines, which, according to 
their own financial statements, were capitalized at nearly 
$60,000,000. In order that we may understand some- 
thing of the economic advantage of these projects to 
their promoter let us consider their cost: 

Mr. E. J. Lawless, in his report made to the American 
Street Railway Association, 34 places the cost of construc- 
tion of cable road at $50,000 per mile. Mr. Robinson 35 
estimates the cost of cable construction in Los Angeles, 
including 4,250 feet of viaduct and 2,124 f eet of bridges, 
at $52,000 per mile; and in the report of the Illinois 
Labor commission the maximum cost of cable road of 
the three leading companies in Chicago is placed at 
$50,000 per mile. This seems to be a fair and liberal 
estimate for cable road construction in Chicago. From 
similar reports and the estimates of experts we find that 



33 The price which Mr. Yerkes stipulated to pay for these 
shares in case he secured the franchises and the loan desired was 
$600 per share of $100 on the North Side line, and $650 per share 
of $100 on the West Side line. But. having no money of his 
own with which to make the purchase, he was willing to stipu- 
late a large sum, provided it could be borrowed on the prop- 
erty of others. 

34 Proceedings of the Am. St. Ry. Assn. (1886), p. 63. 

35 Proceedings of the Am. St. Ry. Assn. (1891), p. 87. See 
also report of 1889. 



PROBLEMS OF TO-DAY. -131 

the cost of electric and horse car road construction is 
from $14,000 to $16,000 per mile. A liberal estimate of 
cost of equipment of these lines, including power houses, 
cables, wiring, machinery, cars, etc., would not exceed 
$15,000,000. A statement of cost, therefore, on this 
basis, would be as follows: 

295 miles electric, at $15,000 per mile $ 4,425,000 

48 miles cable, at $50,000 per mile 2,400,000 

23 miles horse, at $15,000 per mile 345,000 

Cost of Equipment 15,000,000 

$22,170,000 

But referring to the statements made by these com- 
panies we find that they have borrowed $26,562,000 on 
the properties, besides which the promoter and his friends 
are the owners of over $30,000,000 of capital stocks 
which cost them not a dollar. A very remarkable case of 
this kind occurs in the Cicero and Proviso Street Rail-- 
way. This is an electric road of seven miles; its cost for 
construction and equipment did not exceed $300,000. 
Having procured a franchise from the city council, the 
company first borrowed $600,000, giving first mortgage 
bonds therefor, and later, after the lines had been built 
in 1895, it made a second issue of $1,289,000 of 5 per 
cent bonds on the road, for which it is asserted that it 
received between 80 and 90 cents on the dollar. We do 
not assert that the promoter of this scheme used a lobby 
or employed corrupt methods in obtaining this franchise, 
but when we consider that he might have expended 
$1,000,000, if necessary, in securing a favorable franchise 
from the city council and still have had a very 
liberal reward for his effort, when we consider the 
many millions that the various street railway mag- 
nates of Chicago could afford to pay to obtain franchises 
over the streets for transportation purposes or, having 
procured, that they might afford to pay to retain them, 
when we understand further that the franchises 



432 THE GROWTH OF DEMOCRACY. 

for gas, telephone, telegraph, heat, power, water, pneu- 
matic transportation service, etc., are all attractive fields 
for capital if controlled by such grants as the city council 
has power to give, we may then have some notion of the 
economic inducements for corruption which surround 
our city government under the present regime. We may 
also understand why it is that men elected to office on 
reform tickets so often are false to the trust in them im- 
posed by the electorate. 

Nor can we expect to have a clean government so long 
as the people, through the present form of political or- 
ganization, continue to offer such inducements to their 
officers to be corrupt. It would be quite as rational for 
the cashier of the Chemical National Bank of New York 
to leave its funds unguarded and within easy reach of 
every passer-by and expect that no one would steal 
them; for the manager of a large department store to 
give the clerks full powers to dispose of goods without 
accountability and expect no irregularity or misappro- 
priation. Under the present system of municipal con- 
trol we may have a perfect system of selecting honest of- 
ficers and reform councils; yet with such a menace to 
honorable conduct we cannot expect them to serve the. 
public well. Every valuable use of every street in our 
cities is a corruption fund held out to the public as a 
means of corrupting the government. Suppose that a 
certain franchise is worth $10,000,000 and that this may 
be had from the city council. Every member of the 
council may be a man in whom we have the utmost con- 
fidence. Yet any designing individual who is willing to 
undertake it may make an arrangement with a bond syn- 
dicate to borrow the money on this franchise when it 
shall have been granted, use his promises with the mem- 
bers to secure the franchise, pay $9,000,000, if necessary 
to corrupt the city council, and still be a million dollars 
better off as a reward for his corrupting engagement, 



PROBLEMS OF TO-DAY. 433 

There is not sufficient manhood in any nation to with- 
stand such inducements to spoliation. 

Our problem here, as in other cases, is that of taking 
away the inducements which we now offer for corruption. 
How can this be done? We have already solved the 
problem in private concerns, where the principle of prin- 
cipal and agent is involved. We have solved it in many 
public affairs. Suppose some designing individual might 
wish to buy the Illinois and Michigan canal. How would 
he go about it? Under our present constitution he could 
not make an arrangement with the legislature for its pur- 
chase. He could only apply to them, as agents, to have 
them submit a proposition to the people, their principal. 
The people would then by formal expression, say 
whether or not the proposition was satisfactory; they 
would confirm and ratify or reject the proposition made. 
Suppose that such a device had been in force in Phila- 
delphia. The city would not have been at the mercy 
of the gang of thieves who recently, in and out of the 
council, conspired to deprive the city of her gas plant. 
If all franchises for the use of public properties and pub- 
lic ways were made referendal measures, or, perhaps still 
better, put under such general laws as those in force in 
Great Britain, the present inducement to corruption of 
city councils would be largely wanting. 

In order that we may protect the public welfare, it is 
proposed that we employ a plan for the disposition of 
franchises over public ways which combines both the 
features of the "English Tramways Act" and the recent 
Wisconsin law. 36 By the English act the term of fran- 
chise was limited to twenty-one years. This gives one 
year for original construction and twenty years of actual 
use. At the expiration of this time the municipality has 
the option of purchasing the plant at its present value, 



36 See Appendix II. 
28 



434 THE GROWTH OF DEMOCRACY. 

exclusive of profits or prospective profits, value of fran- 
chise, damages for compulsory sale, etc. — i. e., in the 
words of Mr. Sidney Webb of the London County Coun- 
cil, "at scrap iron prices." The Wisconsin law of 1897 
provides that, in case the people of a city so determine by 
majority vote, all propositions for the granting of a fran- 
chise, together with specifications, shall be advertised 
and let to the highest bidder. Two other plans have been 
suggested, one that each franchise shall be made the sub- 
ject of referendal election, the other that, at the time of 
the expiration of the charter, the corporate properties 
shall revert to the city. In the latter case the city own- 
ing the property may operate or lease it as circumstances 
may dictate. 

By providing a system of nominations and elections 
such as to take the choice of officers out of the hands of 
the political machines, by the adoption of the merit system 
of appointments, and by removing from our city coun- 
cils the present enormous inducements to corruption 
the people of the United States may reasonably hope for 
success in the government of their municipalities. 



PROBLEMS OF RECENT WAR. 435 



CHAPTER XVI. 
PROBLEMS ARISING OUT OF THE RECENT WAR. 

The recent war with Spain has brought success to our 
arms. But success brings with it problems quite as se- 
rious as the condition of war itself. These problems are 
of two classes: First, those which are general, i. e., 
those inevitable to a condition of war; second, those 
arising from this particular conflict. We will consider 
them in the order stated. 

War is an extraordinary political condition. In mod- 
ern society it involves a new and peculiar adjustment — 
a new organization, a new direction given to the activities ■ 
of the political society engaged. In a democratic state 
where political action is the result of popular activity, 
where before any new adjustment is made popular 
thought must first be recast and directed along new lines, 
such a change requires some extraordinary stimulus. 
But the stimulus being present, the popular mind having 
become so affected as to produce the extraordinary ac- 
tivities and the new adjustment of affairs necessary for 
international combat, the safeguards of society set up for 
its orderly and equitable civil conduct are often neglected ; 
in fact, the people are apt to be so thoroughly involved 
in the new war spirit and war organization as to make 
them an easy prey to those who are placed in political 
and military control under the new order of things. War- 
fare demands a very large increase in expenditure; it de- 
mands a more widely organized public service, both civil 
and military. Popular thought having been given a 
new direction and having been recast in support of in- 



436 THE GROWTH OF DEMOCRACY. 

creased expenditures and increased public service for 
war purposes, especially when accompanied with success 
of arms, it gives great facility to the building up of a 
political organization which may lead to excesses after 
the return of peace, more to be feared and often more 
disastrous to the nation than the engagement of war itself. 
The evidences of this fact are all too well known. We 
have but to look to the experience of other nations 
which, maddened by success over foreign foes, have* 
finally fallen victims to their own war organization ; we 
have but to refer to our own experience after the wars 
of 1776, 181 2, 1846 and 1 86 1. In each of these cases the 
political activities became so seriously affected, the popu- 
lar mind so intoxicated by the war, that the people, out 
of patriotic devotion and servility to the party which 
carried them through the struggle, have supported 
those who had gained control of the party organization 
without question or doubt; at last, calmed by the ef- 
frontery and excesses, the corruption and spoliation of 
those in power, they have been stirred to reassert their 
strength in opposition and to re-establish the political or- 
ganization on a peace footing. 1 The corruption which 
was practiced, the spoliation which the people suffered 
during the preceding periods of unchecked party ex- 
cesses, might occupy volumes' in detail. In each case 
the patriotic impulses of the people were made use of 
for personal ends; popular devotion to military leaders 
was used as a tie by which popular support was secured 
for party control. It is under such circumstances that 



1 These popular risings above the prevailing party organiza- 
tion which became established during the periods of national 
strain have been as follows: In 1800, with Thomas Jefferson as 
leader; in 1828, when Andrew Jackson took advantage of condi- 
tions present, and, placing himself in front of the popular move- 
ment, was carried into power; in i860, when Abraham Lincoln 
became the apostle of the people to lead them away from the 
altars of their former political masters; and in 1876, with Samuel 
Tilden, and later with Grover Cleveland as the patron of reforrn. 



PROBLEMS OF RECENT WAR. 43? 

demagoguery has its fullest power and the most artful in 
deceit rise to control. In the past it has taken years for 
the people to realize that both the organization and the 
kind of services needed for civil service is quite different 
from that necessary for military success; that the party 
organization strengthened by the successes of war and 
the enlarged political patronage involved in its prosecu- 
tion is the most dangerous political condition which they 
have to face in times of peace. In the past the readapta- 
tion of the political organization to conditions best suited 
to the general welfare of the nation on a peace footing 
has occupied many years ; thus far it has not been accom- 
plished till more of the resources of the nation have been 
wasted in spoliation than were expended in the prosecu- 
tion of the war. 2 These facts should stand before us as a 



2 Recurring to the experience of the last war, we find that 
during the six years, from 1861 to 1866 inclusive, the average 
expenditures of the civil establishment was only $30,000,000 per 
year, and that this included all of the extra civil service grow- 
ing out of the exigencies of war, the expenditures gradually 
rising from $23,300,000 in j86i to $40,600,000 in 1866. After the 
disbanding of the army and after doing away with the necessity 
for a large part of the civil establishment expenditures for this 
purpose, instead of decreasing, increased. For the next six 
years the average was about $60,000,000, or double what it had 
been during the war. During the next four years — Grant's last ad- 
ministration — it averaged nearly $76,000,000 per annum. The 
excesses were so gross that the people rose up against the party 
and cast a large majority for Tilden, Democratic candidate for 
President. Though by the jugglery of our electoral system 
Hayes was seated on the President's chair, the influence of the 
campaign for reform, as appears in the expenditures for the civil 
establishment during the next four years, was very marked. The 
annual expenditure for the civil establishment during Hayes's 
administration averaged only about $57,000,000; and under Gar- 
field and Arthur it rose only to about $65,000,000 per annum. 
The spoliation, however, appears not alone in the expenditures 
of the civil establishment; the army, the navy, all of the depart- 
ments, came in for their share. Even the pensions, that institu- 
tion of National benefaction to her soldiers, established as a 
recognition of heroic scacrifice in the public service, were most 
wantonly prostituted, not only by direct fraud in dispensing 
patronage under general acts, but also by a long list of special 
acts of Congress when the general law could not be invoked. It 
has been estimated that fully 20 per cent of the money dis- 
pensed through this channel was purely for partisan ends. 



438 THE GROWTH OF DEMOCRACY. 

warning. It is for the people of the United States in 
their sovereign capacity to determine how long shall be 
required for this adjustment in the present case; it is for 
them to demonstrate whether they will be misled by men 
seeking personal ends through appeals to their patriotic 
impulses. At such a time as this, when every demonstra- 
tion of joy and welcome to returning heroes is used to 
excite support for parties and private enterprises, when 
the ambitious are planning to make these demonstrations 
mere pageants by which they shall be brought before 
the popular eye and by which the organization, built 
up for war purposes, may be maintained as a means to 
their own advancement, it is incumbent upon every citi- 
zen to not only renew his vigilance but to increase his 
efforts in giving a new direction to the current of popu- 
lar thought — in utilizing this unity of spirit and unusual 
energy for the accomplishment of ends which will pro- 
mote the well-being of the state. 

In the present case, conditions are most propitious for 
a quicker and a more economical adjustment than has 
been heretofore effected. In the first place, there is no 
question of constitutional or of National policy involved 
in this struggle which had before the war led to a divi- 
sion of parties upon the issues of the conflict. Each 
of the parties was equally active and each equally re- 
sponsible for the movement. The republican party, to 
be sure, was in control at the time, and some politicians 
no doubt will seek to make political capital out of this 
fact for private and party ends; but to sensible and 
thinking men such an assumption will be stamped with 
discredit and those advancing such claims will be branded 
with suspicion. 

The second favorable circumstance is that a very large 
part of the army and navy was made up of volunteers — 
men whose lives have been given to peaceful occupation 
and the consideration of citizen duties under peaceful 



PROBLEMS OF RECENT WAR. 439 

establishments. Many of the war leaders too, like Col. 
Roosevelt of New York, have been most active in ad- 
ministrative reform; these men will again return to their 
former citizen relations and, with the added prestige of 
valorous military service, will devote their energies to 
their country in civil capacity. In so far as hero worship 
becomes a motive to political activity the people will 
therefore naturally turn to men who may be trusted in 
civil capacity. 

In the third place, the spirit of animosity and sec- 
tional jealousy which has to greater or less extent pre- 
vailed in the past, has been largely overcome by the 
united effort made in preparation for and prosecution of 
the present war. We will not now have the intelligence 
of the North pitted against the intelligence of the South; 
we will not now have the patriotic men south of Mason 
and Dixon's line debarred from places of public trust on 
account of an ante-bellum political faith ; but those highly 
cultured and public-spirited citizens who have done so 
much to sustain the high moral tone of American insti- 
tutions will hereafter take a leading part in the public 
councils, official and unofficial. To the citizen strength 
of the North will be added the citizen strength of the 
South; the citizenship of the entire nation will be linked 
together in bonds of patriotic devotion to a common 
country and a common cause — that cause the general 
welfare of society and the building up of institutions 
here that will accomplish this end. 

The problems peculiar to the present war are involved 
in the acquisition of territory. While our whole history 
has been one of colonization and of territorial acquisi- 
tion, while our National polity from the beginning has 
been on an imperial plan, while our institutional growth 
has been one of constant adaptation to an ever expanding 
empire, yet, so far, this expansion has been over con- 



440 THE GROWTH OF DEMOCRACY. 

tiguous territory; 3 our political activities have been di- 
rected toward adaptations suited to a society occupying 
such a territory. Our new territorial problems are such 
as have to do with expansion and colonization over ter- 
ritory not contiguous; in fact, in some cases lying thou- 
sands of miles from our shores. The territories which 
have given rise to this question are: 

i. The Hawaiian Islands. — These islands are located 
about 2,000 miles southwest of San Francisco and in the 
direct route to Australia and the Oceanic group. They 
have an area of about 6,640 square miles, a population of 
about 100,000, about one-half of which is in the city of 
Honolulu. 

2. The island of Cuba — situated less than 100 miles 
south of Key West. It has an area of about 43,220 
square miles, a territory somewhat larger than that of 
New Jersey, Delaware, Maryland and West Virginia; a 
population of about 1,500,000. The principal city, Ha- 
vana, has a population of about 200,000 and seven other 
cities contain from 23,000 to 70,000 people each. 

3. Porto Rico and the other Spanish islands of the 
West Indian group — having an area of about 4,000 
square miles. 

4. The Philippines — situated about 5,000 miles west of 
San Francisco and only a few hundred miles off the coast 
of Asia. These islands have an area of 114,326 square 
miles, a territory nearly as large as all New England, to- 
gether with New York and New Jersey. They have a 
population estimated at from 7,000,000 to 10,000,000. 
The principal city, Manila, by the census of 1887 had a 



3 The single exception to this is Alaska, and even this is on 
the same continent. But Alaska has required but little of gov- 
ernment of any kind; its population has been comparatively 
small and widely scattered, its territory vast and in the larger 
parts wholly uninhabited. The conditions there would furnish 
no criterion for action under circumstances such as those present 
in the island possessions. 



PROBLEMS OF RECENT WAR. 441 

population of 154,062, while four other cities contained 
from 30,000 to 45,000 souls. 

5. The Ladrones and Caroline Islands — two groups 
of much smaller but more numerous islands situate in 
the Pacific, lying between the Philippines and Hawaii. 

The circumstances which have given rise to the ques- 
tion before us are peculiar. The Sandwich Islands are 
a small group unable to cope with foreign powers. They 
have long been knocking at our door. They had been 
cursed with bad government and rent by revolution. 
The population had gradually dwindled till at this pres- 
ent time it is only about one-half what is was when Eu- 
ropean settlement began. For years they had led an in- 
dependent but precarious existence. Since 1893 the 
present government has been in control. This govern- 
ment, hampered by the adverse claims of the former royal 
house, foreign intrigue and domestic political combina- 
tions seeking to obtain control in their own behalf, had 
come to us asking, not that their own rule be perpetu- 
ated, but that these islands be allowed to come under the 
protecting sovereignty of the United States; that they be 
protected in an autonomous, a representative, govern- 
ment by a nation which was strong enough to cope with 
adverse powers. After several years of petition and de- 
lay, of committees and commissions, the United States, 
under pressure of the present war, finally decided to com- 
ply with this request. But this step being taken, the 
question still remains as to what adaptation shall be made 
in our system for its government. 

In Cuba a different set of conditions have prevailed. 
For some time there had been a revolution in progress 
just off our shores. The people of the island having for 
ten years (1868 to 1878) waged a war for independence 
from what they conceived to be a tyrannous Spanish rule, 
had, under promises of the reforms for which they were 
struggling, again acknowledged the sovereignty of Spain, 



442 THE GROWTH OF DEMOCRACY. 

But these promises were violated, and again, in 1894, a 
considerable portion of the people of the island arose 
with a determination to cast off the Spanish yoke or 
yield up their lives as a sacrifice. Since that time the 
struggle had been maintained and Spain had been unable 
to restore peace and reassert its sovereignty over a large 
portion of the island. The methods employed to reduce 
the insurgents to submission were cruel in the extreme — 
shocking to every sense of humanity and military pro- 
priety. Finally, after repeated official announcements 
and warnings on the part of our government demanding 
a cessation of such practices, an armed intervention was 
declared which involved us in a war with Spain. As a 
result of this war Cuba has been freed, Porto Rico and 
the other Spanish West Indian islands have been ceded 
to the United States and our government has retained 
possession of certain parts of the Philippines, of the La- 
drones and the Carolines pending the establishment of an 
order satisfactory to the authorities at Washington. This 
has raised the questions as to what our policy should be 
relative to Porto Rico, which stands on about the same 
footing as the Sandwich Islands; what our obligation to- 
ward Cuba, what our duty toward the Philippines and 
the other Spanish possessions in the Pacific which have 
fallen into our hands by the chances of war. 

To those who still declaim against non-interference in 
the affairs of other nations it has been well answered 
that, as to the matters in hand, it is now too late to discuss 
the question. We have already interfered; we have en- 
gaged in war on this account, and the conflict has been 
decided in our favor. The moment that hostilities began 
all arguments as to the wisdom of interference or non- 
interference had to be laid aside; it became necessary 
either to overcome the enemy or ourselves be overcome. 
However hasty or untimely the act of interference may 
be thought to have been, the step was taken after a deci- 



PROBLEMS OF RECENT WAR. 443 

sion made by the duly constituted authorities. Then the 
rule of conduct for every citizen became at once shifted ; 
it was no longer "come let us reason together," but "my 
country, right or wrong, my country." Having inter- 
fered in the interest of humanity and good government, 
having forced Spain to make terms by which cessions 
of distant territories were made as an indemnity and 
having retained military possession in Cuba and the 
islands of the Pacific till a satisfactory settlement shall 
have been made, we must now decide on the steps further 
to be taken. 

We have announced by resolution that we disclaim any 
intention to secure Cuba to ourselves. Very well! But, 
it is asked, is our obligation now discharged toward Cuba 
and the world? We have broken down the broad sov- 
ereignty of Spain. The various island possessions are, 
so far as Spain is concerned, without protection as against 
the stronger nations unless that protection is offered by 
the United States. Furthermore, having undertaken a 
war for the sake of good government and humanity, is it 
enough that the rule of Spain shall cease? Another form 
of tyranny more terrible and more shocking to our sense 
of humanity may take its place. Our war is not pri- 
marily or avowedly against Spain, but in the interests 
of such a political establishment as an advanced civiliza- 
tion demands. By reason of this fact, it is affirmed that 
it is quite as obligatory that we see to it that a humane 
and efficient government be established as that the "Span- 
ish tyranny" be ended ; that the world will hold us respon- 
sible; our very act of interference makes us responsible 
as a guarantor of good government. 

The Philippines, too, are in a condition quite similar to 
that of Cuba. A revolution had just taken place — had 
not at the time of our occupation been wholly repressed. 
The most cruel methods of warfare had been employed. 
Before our military occupation of these islands we did 



444 THE GROWTH OF DEMOCRACY. 

not deem it incumbent on us to interfere there by reason 
of the great distance of these islands from our shores; 
claims of humanity upon the attention of other nations 
were stronger than upon our own. But now, it is urged 
that that reason cannot be appealed to. These islands 
are now in our actual possession; we are now nearer to 
them and in better position to act than is any other civ- 
ilized nation. For us now to release these islands, for 
us to allow the former cruelties to be wrought upon them, 
and perhaps added vengeance to be poured out, when 
we are in the best position of any nation to prevent it, it 
is charged, would be to deny the very principles for which 
the war was undertaken. The United States having 
taken possession of these islands, the question presents 
itself to our sober judgment: Is it not incumbent that 
we do not relinquish control there without a guarantee 
of such a government as modern civilization demands? 

If the question is answered in the negative, then our 
right to have interfered in the first instance is denied; if 
our answer be in the affirmative and we accept this as 
the true theory of our relations to the' islands over which 
we have temporarily thrown our protection, then by what 
means are we to accomplish the desired end? Shall we 
again surrender these possessions to Spain? Her whole 
colonial history has proven a failure ; the last of her dis- 
tant possessions are now parted from her as a result. 
Shall we cede them to Germany, France or England? 
There are but few advocates of such a policy, and the 
question may well be asked: What reason would 
there be for such disposition? Shall we leave the islands 
to their own people, unassisted and unrestrained, to be 
rent by factions and finally to be subdued and brought 
under orderly government by some stronger power? But 
little can be said in justification of such a course. 

But, assuming that the responsibility is to ourselves 
alone, as a nation how can we discharge this responsi- 



PROBLEMS OF RECENT WAR. 445 

bility? What policy can we adopt which will secure the 
establishment of order and conserve the interests of good 
government in the islands and at the same time not en- 
danger our own institutions. An established order most 
favorable to the highest social and economic develop- 
ment of the islands — one which will allow of broad co- 
operation — requires that the government in control shall 
command sufficient force to repel invasion and put down 
insurrection. For this purpose the several islands, act- 
ing independently or even in groups conveniently near, 
would, under present conditions, be all too small. The 
broad sovereignty and protecting power of Spain has 
been broken down; the islands are at present without 
this condition precedent- to their highest well-being. As 
to the ability of the United States to meet this condition, 
there is perhaps little question. It was for the purpose 
of obtaining the protection of a stronger power that the 
Hawaiians sought admission to our political household; 
it is to the same end that the people of the several 
islands that have been in revolt against Spain are now 
appealing to us for protection. The ever broadening 
commercial and industrial organization of the leading 
nations, it is thought, demands that these political estab- 
lishments reach out; that they extend their sovereignty 
over the less favored territories when requested so to do 
in order that their natural resources may receive the high- 
est development; that industry may be conducted with 
greatest economy, and their people have the conditions 
present for highest well-being. The present position of 
the United States indicates to some that the welfare of 
these smaller jurisdictions would be most highly favored 
under its protection. But in order to accomplish this 
end it must be admitted by all that a new colonial polity 
will have to be adopted; that the policy pursued in the 
colonization of contiguous territory (territory which after 
being developed might become a part of a federated 



446 THE GROWTH OF DEMOCRACY. 

whole governed by a central council or legislature and 
over which a central administration may extend) will not 
suffice. The experience of the past has demonstrated 
also that, except when threatened by superior force, the 
locality itself can best exercise the functions of govern- 
ment; that the political institutions of a people con- 
serve their welfare only when these institutions are the 
product of their social and industrial life; that the polit- 
ical establishments must be in harmony with the highest 
and best interests of a community. A foreign court or 
government cannot be as thoroughly in touch with these 
interests as the people themselves. The American revo- 
lution of 1775, the Canadian revolution of 1837, the va- 
rious revolutions of Spanish provinces, the last of which 
was the one recently in progress, demonstrate this fact. 
They tell us of the impracticability of the exercise of the 
functions of government by foreign agencies; our whole 
National history and that of the colonies of Great Britain 
since the adoption of her present policy speak of the wis- 
dom of local autonomy. An autonomous government 
under the protective sovereignty of the United States 
would, then, be the only form of establishment that 
would seem well adapted to the fulfillment of our re- 
sponsibility in case we accepted it. The requirements of 
such a civil policy would be such as to suggest the estab- 
lishment of a Federal colonial department, perhaps a sub- 
department of interior or foreign affairs, devoted to col- 
onial interests similar to that of Great Britain. To make 
this efficient it would require that our consular and ap- 
pointive positions be placed under the merit system, in- 
stead of being left on a spoils basis as at present. 4 



4 This was the conclusion that Great Britain came to several 
decades since. Before this time the colonial affairs were sorely 
mismanaged, after the adoption of a professional and meritorious 
service the affairs of her colonial possessions have been so man- 
aged as to be beneficial both to the colony and the central gov- 
ernment. Such a change, it is thought, would be of no special 



PROBLEMS OF RECENT WAR. 447 

But, conceding the first hypothesis, conceding that the 
United States is now, by virtue of its act of interference, 
responsible for the establishment of such a government 
as is demanded by the highest principles of modern civ- 
ilization and conceding that a new colonial system suited 
to the purpose might be adopted, that the economic and 
social well-being of the islands would be best conserved 
by the extension of our National sovereignty over them, 
the other element of the problem must still be taken into 
account. Can this be done without endangering our own 
government or encumbering our energies? If not, if it 
will be to our own disadvantage, or if the advantage will 
not be mutual, then it must be conceded that we might 
better let the people of the islands work out their own 
salvation, or be protected by some treaty arrangement, 
whereby the best disposition consonant with our own 
welfare would be made. 

In the first place, it would be necessary for us to pro- 
tect these colonies. We would be required to be ready 
at all times not only to protect our present territory and 
the interests of people residing within these limits but 
also to protect those territories and people which would 
be brought within the enlarged and widely distributed 
jurisdiction. To this end, it is argued, that we would 
need largely increased armies and navies. Prior to the 
Spanish war we were already expending about $35,000,- 
000 per annum to keep up our military establishment of 
25,000 men, and about $20,000,000 per annum, besides 
the cost of construction, for keeping up the navy. Since 
the war began we have added very largely to our navy 
and aside from the cost of purchase and construction we 



burden or disadvantage to our government, as the cost would be 
trivial and it would tend to improve our own consular systems; 
it would add little or nothing to the burdens of either colony or 
general government — would, in fact, be advantageous to both. 
Until this is done, however, we might well distrust the issue of 
such an undertaking. 



448 THE GROWTH OF DEMOCRACY. 

may expect that the naval establishment will cost quite 
as much as the army on the old footing, i. e., $35,000,000 
per annum. It Js estimated by some that in case we as- 
sume a protectorate for these islands we would at once 
have to double the naval force and keep a standing army 
of three or four times the number heretofore required, 
and enormous pressure is at this time being brought to 
bear on the central government to this end. This would 
cost us about $100,000,000 per annum extra, while on a 
peace footing, by reason of the newly acquired posses- 
sions. These extra annual expenditures, together with 
the war debt, the increased pension roll and the en- 
larged civil service necessary in such event, would nearly 
double our annual expenditures. 

To the "professional politician" and the spoilsman, 
under the present system of National expenditure, this 
is an inviting prospect, and we may expect that all of the 
energies of such will be bent toward the establishment of 
such a policy. To the citizen and the taxpayer it may 
appear in a different light; it may cause him to doubt 
whether the step should be taken if such an enlargement 
of naval and military force is to be required. 5 The na- 
tions of Europe and Asia have been and are to-day se- 
riously burdened by their naval and military taxes — taxes 
not in money alone but also quite as heavy a burden of 
life and labor drawn into compulsory military service in 
times of peace. These must be paid for by the nation. 
The burden ultimately falls on the productive agencies 
of the nation — the people. Ultimately they very largely 
fall on wages, as the wage earner can never hope to get 
more than his share of the product after all expenses of 
production, including interest, taxes, etc., are paid. The 
lamer the tax burdens the less there will be left for dis- 



5 If we read the expressions of certain public men and en- 
thusiastic journals we may be still further alarmed at the pro- 
posed policy and the obligations involved in these ventures, 



PROBLEMS OF RECENT WAR. 449 

tribution in wages and profits. In the past the United 
States has been on a much better industrial footing than 
the more warlike nations, and a very large element of ad- 
vantage has been our freedom from military burdens. 
In considering the advantage or disadvantage of a for- 
eign colonial policy we must take this into account. 

As an incident to this consideration also it must be re- 
membered that at this time there are many millions of 
dollars appropriated for the conduct of the Spanish war 
that it has not been necessary to spend in offensive or de- 
fensive outlays, and that while we are flushed with victory 
the politician and the spoilsman will do all in their power 
to have this spent in such a manner as that they and their 
friends may profit thereby. A colonial policy will be an 
added advantage to them. They can appeal strongly to 
the government and to the people for expenditures in 
army and naval supplies, for reconstructive offices and 
salaries, for the expenditure of moneys and the giving 
of contracts that may serve their ends. The war spirit 
and the political organization will be used to gain sup- 
port for the expenditure of these and other millions 
which if the country were in a more heavily burdened 
condition it might revolt against. As, in the civil war, 
it was not more the actual cost of the conflict than the 
subsequent spoliation that piled up the immense debt 
upon the people of the United States, so in this may we 
not fear that it is not so much the actual cost of the war 
up to the time of peace as the various political machines, 
the spoils combinations, set in motion and made possible 
that will become a burden to us? The expense to date 
has been comparatively small but unless great vigilance 
is exercised the cost to follow will be much larger. 
Would a policy of protection to these islands, under the 
circumstances, so affect the political organization as to 
retard the readjustment to a peace footing? 

The effect of a colonial policy on National expenditure 

29 



450 THE GROWTH OF DEMOCRACY. 

under such a system of appropriation as is now in vogue 
at the National capital should also be very closely con- 
sidered. The war spirit and the increased number of po- 
litical leeches who always spring up during the prosecu- 
tion of and immediately following a war are conditions 
which we cannot safely ignore. The establishment of a 
new policy of extension will be an added incentive and 
added reason held out in justification of dangerous 
methods. 

Another side of the case, however, presents itself. 
Granting, for the sake of this consideration, that, under 
the circumstances present — circumstances especially fa- 
vorable to the prevention of spoliation and an early ad- 
justment of the political organization to a peace footing — 
the American people will be able to avoid the political 
dangers generally incident to war, is it necessary to in- 
crease the military burdens proposed in order to act as 
protector to the island possessions? In the past we have 
assumed the attitude of protector to all weaker, inde- 
pendent nations on the western continent by the an- 
nouncement and support of the Monroe doctrine. This 
doctrine, dangerous as it may have seemed to our free- 
dom from international controversies, was promulgated 
while the continent was still very largely possessed by 
leading European powers. During its continuance a 
great variety of complications have arisen that have 
caused us to assert ourselves in opposition to the claims 
of these powers, on one occasion to actually take up 
arms in its support. The United States could not have 
taken an attitude more thoroughly opposed or hostile to 
European nations; nor could we have assumed an inter- 
national position better intended to produce discord be- 
tween ourselves and the transatlantic powers. We as- 
serted, in short, that there should be no more European 
colonies established in either of the American continents; 
that while the United States would "not interfere in the 



PROBLEMS OF RECENT WAR. 451 

internal concerns" of any European nation "in regard to 
these continents (North and South America) circum- 
stances are eminently and conspicuously different," and 
if any European power attempts at any time to extend 
its political system to any part of this hemisphere the 
United States will interfere; furthermore, that when a 
European power shall have lost control over any part of 
the American territory and an independent government 
shall have become recognized as exercising sovereignty 
thereon, then the Monroe doctrine should be considered 
as applying to the newly recognized independency; that 
not only was it our duty to resist any attempt of a Eu- 
ropean government to deprive neighboring republics of 
their territory but, if necessary, resistance would go to • 
the use of armed force. 6 

And yet we assumed to exercise no control over these 
minor or independent governments by which interna- 
tional complications might have been avoided. They 
were left free to carry on diplomatic and international in- 
tercourse in their own behalf, to get into any sort of diffi- 
culties to which either their disposition or folly might 
lead them; nevertheless we assumed to assert to the 
world that in case contests did arise no settlement should 
be had which would do violence to the protection estab- 
lished in the Monroe doctrine. Under such circum- 
stances as these, even when a large part of our own terri- 
tory was unprotected, our coasts undefended and unforti- 
fied, by reason of the unconquerable nature of our people 
as demonstrated in the two wars with Great Britain and 
the marvelous energies and resources of the American 
nation, displayed not only in these but also in the wars 
of 1846 and 1 86 1, the United States has not suffered by 
reason of the smallness of its standing army or navy. 
About the only use that we have had for an army, in fact, 

6 See John B. McMaster, "The Monroe Doctrine" Essays, 
pub. Appleton, 1896, "With the Fathers." 



452 THE GROWTH OF DEMOCRACY. 

has been that of policing our own Western frontier 
while colonizing the Territories and establishing govern- 
ment there. We now have little to fear from these quar- 
ters. There is no longer any frontier on our continent. 
We may fear no internal collisions that cannot be met by 
the State peace authorities and citizen militia. In case 
we now broaden our territory so as to include distant 
inlands there is no reason, it is claimed, why a large part 
of these 25,000 men of the standing army may not be 
taken away from the places where they were stationed 
before the war to be used for the purpose of policing 
the new territories while an autonomous government is 
being established there. 

But, further, need we fear any increased danger from 
foreign complications on account of the assumption of 
the duties of a protectorate over the islands of the At- 
lantic or the Pacific? One thing is certain, that if we 
had possessed Cuba and Porto Rico prior to the recent 
conflict there would have been no cause for war; we 
would not have had trouble with Spain. The only Eu- 
ropean war which we have been engaged in since 1812 
has been the present one of intervention in the govern- 
ment of these islands by reason of their being controlled 
by a foreign power, and that control abused. These 
islands lying just off our coast, we deemed it our duty to 
interfere for the sake of humanity. No such intervention 
would have been undertaken for the Philippines, al- 
though the conditions there might have been much worse. 
The humanities there, like those involved in Armenia, 
per force of nearness, appealed more strongly to others, 
before the struggle began and we had gained actual pos- 
session. From the standpoint of international relations 
we will be much more free from danger of complications 
if all negotiations relating to these islands proceed from 
Washington than if from the several island courts. More 
than that, there would be less danger of any intrusions 



. PROBLEMS OF RECENT WAR. 453 

which might give rise to international controversies if 
these territories were under the sovereignty of the United 
States than if they stand alone as weak and independent 
jurisdictions in which the interests of citizens of other 
nations are not protected and their rights adjusted by 
courts recognized by the highest authorities. From the 
standpoint of international complications, therefore, it is 
thought that the United States has much less to fear while 
exercising the functions of political protectorate over 
these islands under her own sovereignty than when 
standing upon the Monroe doctrine, or the principles in- 
volved in the Samoan difficulty, exercising the function 
of political protectorate over islands outside of her sov- 
ereign jurisdiction. If the possibility or probability, of 
international relations are appealed to, therefore, as a 
reason for enlarging our naval establishment, this would 
appear to be without foundation; in fact, if we pursue 
the logic of the situation we would conclude rather that 
under such circumstances we might with safety decrease 
our naval and military offices. 

Another argument held out by those seeking to in- 
crease the burdens of military establishments, as well as 
those opposing the accession of the islands, is that our 
coast line will thereby become more open to attack. 
Geographically this is admitted. But to those who favor 
territorial extension and yet who fail to see the necessity 
of enlarging the military and naval establishments on 
this account other considerations have greater weight — 
considerations which appeal to nations in making war 
upon each other. Suppose that, in case war were de- 
clared between the United States and Germany, the lat- 
ter might succeed in getting military possession of the 
Philippines or the Sandwich Islands. Would this de- 
cide the struggle? When nations go to war the conquest 
is not complete till the one nation or the other is practi- 
cally disarmed or put to such disadvantage as to be com- 



454 THE GROWTH OF DEMOCRACY. 

pelled to sue for peace. The military prowess of the 
United States would be scarcely disturbed by the loss of 
these islands; this would have but little weight in an 
international war; the struggle would be continued not- 
withstanding such possession on the part of the enemy. 
The resources of the United States are such that when 
her energies turn to military activities she need fear no 
foe. If the warlike instruments were not at once at hand 
it would be but a question of a short time when they 
would be. With a comparatively small expense in forti- 
fications we need not fear the destruction of our large 
coast cities. Suppose that war were declared and that 
we could not at once force our enemy to terms of peace 
honorable to ourselves; suppose that it might continue 
several years before such terms might be had. We need 
fear nothing from invasion here. In case it became nec- 
essary to devote our energies to naval construction in 
order to win honorable terms we have facilities for such 
construction in such inland seas as the Chesapeake, 
the Delaware, Puget Sound, San Francisco Bay, etc., 
from which in the course of two years we could turn out 
a navy as large as any in the world. While such re- 
sources are at hand, while we are not incumbered with 
debt, while our people are united and ready to respond 
to military duty at the first call, to a man, we need not 
fear war with any foreign power. It is the ultimate re- 
sources that are taken into consideration in estimating 
the chances of war; it is not the present armament but 
the fighting possibilities of a nation in bringing into 
service armaments and war materials and using them 
to crush its enemies that rulers and national councils 
take into account before essaying into warlike demon- 
strations against their neighbors. Suppose that Spain 
had not been bankrupt; suppose that her industry had 
not been prostrated by centuries of taxation and exac- 
tion; suppose instead that her territory had been a hive 



PROBLEMS OF RECENT WAR. 455 

of industry ; that she had been out of debt and her credit 
had been unimpaired, it would not have been such an 
unequal contest. We might have succeded in finally 
taking possession of her island possessions, but even then 
we might have had quite as much trouble in holding them 
as she herself had done; we would have had to garrison 
and protect them quite as well. With the fall of Santiago 
the war would have only begun; larger armies and in- 
creased navies would have appeared against us ; we could 
not have hoped to conquer proud Spain till we had in- 
vaded her home territory and compelled a surrender by 
gaining control of her home resources. 

The fact of a widely extended coast line is not the fact 
of most importance in considerations of war; rather, the 
military possibilities of the whole nation. We will be in 
far better condition to wage war, as well as to enjoy the 
benefits of peace, if we free ourselves from debt, reduce 
our taxation, increase the returns and the inducements 
to industrial activity, become the most energetic and most 
wealthy, the best united and the most contented people, 
than if we incumber ourselves with debt, burden our 
people with taxes, lessen the return and weaken the in- 
ducements to industrial activities, cause our own people 
to become factious and dissatisfied by reason of the con- 
tinual maintenance of establishments of war. Let us 
now suppose that we so increase our military and naval 
establishments that they cost more for maintenance than 
our civil establishments, as is the case in most of the Eu- 
ropean countries; suppose that we compel each citizen to 
devote three years of his best energies to military service 
beside, as is the case in Germany; suppose that we float 
the largest navy and maintain the largest standing army 
in the world as a result and have with them weakened 
resources and the other conditions prevalent in Europe. 
Instead of having strengthened ourselves among nations 
we will have become much weakened. It is doubtful 



456 THE GROWTH OF DEMOCRACY. 

whether such a nation could survive; whether, on the 
other hand, it would not, as did the Roman Empire, the 
Carlovingian Empire and the French Empire, fall from 
its own weight, unable to support its own superstructure. 

Assuming, again, that it will not be necessary to bur- 
den our system with a large military establishment in 
case we extended our sovereignty, another aspect pre- 
sents itself- — the civil side of the government of the 
islands. These peoples, the inhabitants of the islands, are 
of various kinds and degrees of education and civiliza- 
tion; many are at present quite incapable of representa- 
tive self-government. In some of the Philippines they 
maintain a government peculiar to themselves; in other 
places the illiterate form such a large proportion of the 
population, itself largely Indian or negro, that it may 
require years of education and orderly conduct of affairs 
to bring them to a point where government similar to 
our own is practicable. How can this motley and com- 
plex aggregation be governed without involving us in 
expense and making the newly acquired possessions both 
a burden and a source of corruption at home? These 
problems have been successfully solved by Great Britain, 
but not till she had adopted three principles of organ- 
ization, viz.: First, local autonomy wherever this was 
practicable; second, a merit system of appointments in 
administration of colonial affairs in so far as not represent- 
ative; third, a system of national expenditures based on 
careful estimates and expert disbursement. These would 
seem essential to an efficient and safe colonial govern- 
ment. As to the tax burdens of the system the experi- 
ence of Great Britain, as well as our own, has solved the 
problem in the past by letting each local or colonial 
jurisdiction bear its own burdens of government. 

Reasoning from our own experience in colonization 
and expansion and from that of Great Britain, it is 
urged that little is to be feared from the results of the 



PROBLEMS OF RECENT WAR. 457 

recent war, even if we decide to extend our sovereignty 
over the captured islands and such other weak inde- 
pendencies as may hereafter appeal to us for protection; 
that we are able to secure the establishment of order, con- 
serve the interests of good government in the islands and 
at the same time not endanger our own institutions. 
But this conclusion, it must be noticed, is based on cer- 
tain assumptions quite essential to its validity, viz.: 

1. That the patriotic activities which have lead to suc- 
cess in arms will now be directed to an economic and 
safe adjustment of our political organization to a peace 
footing in order that the waste and spoliation that usually 
follows successful warfare may be averted. 

2. That the extension of the sovereignty of the 
United States over these island possessions for their 
protection will not increase our own burdens for main- 
taining our military establishment. 

3. That in establishing such a polity we may also 
adopt a new and more economic system of National ap- 
propriations. 

4. That we so adjust the civil establishment as to se- 
cure (a) an autonomous government in the islands wher- 
ever practicable, (b) a merit system of appointments. 

5. That the broader political organization given by 
this policy proposed will be of added commercial and in- 
dustrial advantage to us, so that our resources shall be 
strengthened and that we may be in better economic as 
well as social condition to withstand the National strain 
of an international struggle in the event of such an en- 
gagement. 

Unless these conditions precedent can be complied 
with we might well not only hesitate but refuse to advance 
further in the policy of territorial expansion. In any 
case, it is of far greater importance to us as a nation that 
every citizen become an active partisan f©r the payment 
of the National debt, the economic expenditure of its 



458 THE GROWTH OF DEMOCRACY. 

resources, the reduction of its tax burdens and an equita- 
ble administration of its tax system. Prosperity and 
political unanimity in support of the government is far 
more important to the greatness of the nation than any 
other policy that may be adopted. With a wise adminis- 
tration at home, as trade and commercial interests ex- 
pand, we will at all times be in condition to extend our 
sovereignty over any weaker nations who may seek our 
protection. We must always have a care, however, that 
this expansion conform to the economic law of advan- 
tage; otherwise we ourselves, as well as our wards, will 
be weakened instead of strengthened. 



THE DUTIES OF CITIZENSHIP. 459 



CHAPTER XVII. 
THE DUTIES OF CITIZENSHIP— CONCLUSION. 

As already observed, the state or "body politic" pre- 
sents two essentially different aspects. On the one hand 
is the legal, the constitutional, the structural element; on 
the other is the political, the active, the directive. The 
latter being the element which molds and fashions the 
law, which gives direction to the institutional, it is this 
to which we must turn in a consideration of the duties 
of citizenship. However repulsive the word "politics" 
may be to some; however unholy its associations have 
been in the past, the political life being the fountain 
head of government we cannot hope to purify its cur- 
rents without beginning here. The national life being 
involved in its political activities it must be to these ac- 
tivities that duty applies. 

But political activities are social in their nature. Po- 
litical action involves agreement among the people. In 
a country like our own, there must be an agreement 
among at least a majority of the members of the politi- 
cal state before any institutional change can be made. 
One member may form a judgment as to the necessity 
for action of a particular kind, but before that action can 
be taken this individual judgment must receive the sanc- 
tion of many others. There must be agreement: (i) as 
to what point of the political machine is out of order, 
i. e., out of harmony with the attainment of the greatest 
public good; (2) as to the particular change necessary to 
put the political organism into such adjustment with 
conditions present as to accomplish the end desired. 
In considering the duties of citizenship we have to do 



460 THE GROWTH OF DEMOCRACY. 

with the manner and means of bringing about such 
agreement, thereby shaping political action to the at- 
tainment of the general weal. 

But the security of the general welfare being admitted 
as the end of political activity, who is to determine what 
that welfare is? When complaint is made of the estab- 
lished order, or a change is proposed, who shall be the 
arbiter? The people. But by what standard, norm, or 
law are they to judge? Shall we say self-interest? Then 
again the question presents itself; by what rule of self- 
interest? In other words, the estimate of the individ- 
ual as to what will be his highest interest will depend 
on his training, his education, his standard of life. The 
first duty of the citizen, therefore, must be that of estab- 
lishing and maintaining such standards of life and action 
among his fellows as will lead them to act in accord 
with the highest principles of life and social well-being. 
It is with considerations of this kind that the school, 
the church, teachings in the social sciences and other 
means of public instruction have to do. The ability of 
society to act according to some standard which will not 
do violence to the demands of a progressing civilization 
is the dividing line between ability to control by self- 
government and the necessity for monarchy. History 
having demonstrated that the strongest and most ad- 
vantageous form of political organization is one of broad 
co-operation — local self-government under the protec- 
tion of a broad protective polity — the duty of the citizen 
to maintain the conditions necessary for the maintenance 
of such a system is plain. 

The norm, such as it is — being present in the mind 
and thought of each individual — it now becomes neces- 
sary to consider the duties of citizenship as to the man- 
ner and means of securing popular agreement: 

First, as to the part of the political machine that is out 
of adjustment. This presupposes knowledge of condi- 



THE DUTIES OF CITIZENSHIP. 461 

tions present. Without this knowledge one would not 
be competent to judge, by any norm, whether or not the 
political machine were out of adjustment. To the end 
that the citizen might be in touch with his surroundings, 
we have established the constitutional guarantees of 
peaceable assembly, free thought, free speech, and free 
press, and made provisions for giving publicity to offi- 
cial acts and for official inquiry into subjects of public 
interests, executive messages, government reports, etc. 
The newspaper also has been a potent instrument in 
keeping the people informed; its inquirers and reporters 
are on every hand seeking for the information desired, 
they are untiring in their efforts, they have been of in- 
calculable service to the public. The independent press 
has also done much. In short, it may be said that the 
organs for procuring and disseminating knowledge of 
conditions have been provided. It is the duty of the 
citizen to make use of them; to encourage efforts at in- 
vestigation and the publication of results. 

As to this form of agreement, however, the people 
have usually had little difficulty. We may congratulate 
ourselves that by means of these several agencies we are 
kept well in touch with our institutions; that'we usually 
know what parts of our political system are out of ad- 
justment. When it is stated that at the present time the 
interests of the people are suffering by reason of incom- 
petency in office, inequality in elections, the employment 
of the spoils system in appointments, legislative corrup- 
tion or the subversion of municipal government in the 
interest of organized spoliation, the majority are agreed. 
Or if we are more specific in our statement of conditions 
and affirm that legislative corruption, for example, ap- 
pears in the election of United States senators, the ger- 
rymander, etc., this would be consented to. But the 
query is at once raised: "What are we going to do about 
it?" 



462 THE GROWTH OF DEMOCRACY. 

This brings us to a third consideration, a third duty 
of citizenship. The citizen must not only know but act, 
and acting he must not only think and act for himself 
but think and act in such a manner that he can get into 
agreement with others. What are we going to do about 
it? This is a question that comes home to each citizen 
when he learns of conditions adverse to the welfare of 
society and his own interests. In the preceding chapter 
some suggestions have been made as to a means of ad- 
justing the political organism to conditions present. 
These, however, are but the expression of individual 
opinion — a private judgment. Having thought on the 
conditions which have produced maladjustments, rely- 
ing on the experience of society in the past in this and 
other nations, these conclusions have been reached. 
They signify nothing more; the solution is not yet. 
Others may think, and reach conclusions of their own. 
They may not agree. The judgment of the individual 
must stand the test of the discretion of the people. Popu- 
lar reason may discover that modifications other than 
those suggested are better adapted to the ends of the 
state. Be that as it may, it cannot be doubted that modi- 
fications are necessary, and from this arises the duty of 
decision — of agreement as to a fitting remedy. 

Contrary to the ordinary concept, society does riot 
act as an organic whole. It does not think as a body. 
It is the individual that does the thinking and the acting 
and what is commonly referred to as the acts of society 
or of the state or of the government, are acts of the in- 
dividual co-operating in a manner agreed upon with 
others. When any attempt is made to bring about a 
change in the order of things, there is always disagree- 
ment between the individual members of the state; a 
conflict ensues; there is turmoil, hesitation, uncertainty. 
In the first place, there is a conflict of interest. Change 
in the established order involves such a readjustment as 



THE DUTIES OF CITIZENSHIP. 463 

will in some manner affect the interests of those who are 
benefited by the old order of things which it is proposed 
to modify. In the second place, there is a conflict of 
ideas. From the nature of things a majority of the peo- 
ple, at the time a change is proposed, are against change. 
That is, they have become accustomed to thinking and 
acting in co-operation with others in a certain manner; 
and it will require an increased effort on their part to think 
and act in harmony with others in any other manner. 
Then there is variety of opinion as to the expediency of 
one measure or another. Those who are directly benefit- 
ed by the established order use every means within their 
reach in opposition. They at first try to convince those 
around them that the present order is best; failing in 
this they then attempt to show the weakness, the injus- 
tice, the evils that will follow the modification proposed. 
When large interests are affected this opposition be- 
comes very powerful. Our political campaigns evidence 
the opposition to certain changes in the law proposed. 
For example, it is proposed to lower the tariff rates. At 
once all of those enterprises which would be deprived 
of the quasi monopoly theretofore enjoyed combine their 
money and their energies. Orators take the stump, pam- 
phlets are issued, appeals are made to the prejudices of 
the people, all of the patriotic instincts are aroused as a 
means of affecting the minds of citizens in the interest 
of maintaining the established order; the support of the 
machinery of party organization is secured as a means 
of opposing change. Again, it is proposed to change 
the political system in such a manner that the President 
shall be elected by the people directly. At once the 
leaders of both parties — the politicians who have thereto- 
fore dominated the nominations and elections by cor- 
ruptly controlling "doubtful States" and districts, to- 
gether with all others who hope to secure favors through 
them — at once seek to demonstrate that the present or- 



464 THE GROWTH OF DEMOCRACY. 

der is best, or, failing in this, that the order proposed 
would be of still greater disadvantage to the people in 
their attempts to secure good government. In the dis- 
cussion which follows there may be a lack of agreement 
as to the change proposed and the old order is still re- 
tained. Against all this opposition the people must de- 
termine what their course shall be. Each citizen has the 
double task of deciding what is the best course to pur- 
sue and at the same time of overcoming opposition to 
this course in others till a majority shall have become 
convinced of .the desirability of the change. 

Mutual decision requires mutual consideration. In 
this consideration, where conflicts of interest are in- 
volved, we cannot hope to have the undivided support 
of the organs which are instrumental in moulding popu- 
lar opinion. They are equally free to champion "the es- 
tablished order" or the "change" proposed, as their in- 
terests may dictate. The newspaper, being in one of its 
aspects a money-making institution which looks to pub- 
I lie patronage for its revenues, is often the last to become 
the advocate of a cause that is at first unpopular. When 
large interests are opposed and the forces in opposition 
great, it more often follows or simply expresses popular 
opinion than leads. Many of the newspapers, too, are 
controlled by those whose business interests would be 
affected by the change proposed or suggested. The 
same may be said of the public man, be he legislator, 
office-seeker or party manager. The newpspaper, the 
public man or partisan may do much by way of advoca- 
cy ; they may present the issues on their own side of the 
case with such force and ability that the people having 
heard the question discussed by all the parties interested, 
may be the better able to reach a decision on the merits 
of the question; but on account of their dependence on 
the support of popular opinion and the bids which they 
make for popular favor, we must generally look to other 



THE DUTIES OF CITIZENSHIP. 465 

agencies for the initiative of a political movement — 
agencies which are independent of partisan action and 
public favoritism. 1 

These agencies must be with the people themselves. 
They are found in private association, in voluntary so- 
cieties, in independent parties — having their own meth- 
ods of consideration and discussion. The service which 
these agencies have rendered cannot be overestimated. 
The beginning may be small; it may be the result of the 
interest and enthusiasm of one man who, being alive to 
the evils arising from a certain order of things, draws 
the attention of his neighbors to it and proposes a change 
by way of remedy. The change proposed seems reason- 
able and for the best interest. By association and or- 
ganization the sentiment grows, societies are formed for 
the discussion of the evils detailed and the remedy pro- 
posed; popular opinion is moulded; the people begin 
to make more general demands; the pulpit, the press, 
the public speaker, the politician desirous of riding into 
power on a wave of popular opinion, take it up, and it 
becomes a leading issue in a great campaign. The judg- 
ment of the nation is appealed to and a decision favorable 
or unfavorable, as the case may be, is rendered. 

In our various cities, towns, villages, and school dis- 
tricts are found many thousands of independent volun- 
tary associations organized for the purpose of discussing 

1 As examples, we might refer to the time when the wild-cat 
banking craze was on. Then, though such a condition was sup- 
ported neither by reason, justice or public welfare, by virtue of 
the fact that a large majority of the people were interested, di- 
rectly or indirectly, in the speculative enterprises which are fos- 
tered by ill-founded issues of credit, .and conceived themselves 
to be benefited thereby, scarcely a newspaper or a public man 
could be found in the regions affected who would raise a voice 
in disapproval. Or again, after the civil war, when partisans 
were being rewarded by private pensions, by reason of the fear 
that popular disapproval might be aroused against them by 
demagogical appeals to patriotic sentiment — a sentiment which 
was played on most successfully by those who were despoiling 
the nation— the voices of popular leaders were silent. 
30 



4GG THE GROWTH OF DEMOCRACY. 

public questions. They hold meetings, listen to carefully 
prepared papers, engage in criticism or debate, they pub- 
lish independent papers and pamphlets — the result of 
special investigation or consideration — they use every 
means of becoming informed, of reaching a decision 
among themselves as to modifications desired, and then 
of convincing others through press and private associa- 
tions. The influence of these societies is felt not only 
in moulding popular opinion, but also in opposing arbi- 
trary acts on the part of the government. Let a bill 
be introduced into the legislature that is opposed to the 
public welfare and these local societies stir up the people 
to express themselves by memorial and communicate 
with their representatives till the tide becomes too strong 
for resistance. Legislative action is stopped and the dis- 
tasteful measure becomes a dead letter. The force of 
the independent voluntary association is inestimable. 
This was the means employed by the revolutionary fath- 
ers to resist the arbitrary demands of the British crown 
and parliament. It was in the "committee of correspond- 
ence" and kindred organizations that opposition to the 
established order was organized, and from which pro- 
ceeded the new political formations in the colonies. It 
was in such independent voluntary societies that the 
French Revolution assumed a definite form. Here the 
people discussed the affairs and decided on a course of 
action. This was the force that drove Louis from the 
throne. But in France the oppressed alone reasoned to- 
gether. They did not see the other side of the question. 
They were not impressed with the necessity for an or- 
derly change, such that in modifying a part of their sys- 
tem the whole organism would not be thrown out of 
working order. Those in power, those who were bene- 
fited by the unjust order of things which prevailed, and 
against which the people complained, held themselves 
aloof; they ignored the popular activities as manifested 



THE DUTIES OF CITIZENSHIP. 467 

in these societies; their voices were not heard; no com- 
promises of thought and action were asked for; they 
sought to govern the action of complainants by the use 
of physical power. The result was that when the op- 
pressed party came into power it was quite as arbitrary 
and unjust as had been those who had oppressed them. 
Questions of taxation present themselves to the people; 
certain evils exist. Those who are active in the consid- 
eration of modifications in the interest of equity, those 
who are endeavoring to apply the principle of taxation 
according to ability are not the men of wealth. These 
have held themselves away from all consideration of re- 
form; they have been absent from citizen meetings held 
for the discussion of such topics; most of them have been 
contented to avoid the issue and continue in their prac- 
tices of evasion and corruption by which they have prof- 
ited. Such an attitude must force the majority to take 
action without their council and consent. If such men 
— the men of wealth — would bring themselves into ac- 
tive co-operation with those who are endeavoring to 
make a proper adjustment of such questions, an agree- 
ment would not be difficult, and when arrived at would 
rest on a just consideration of all interests. But when 
those who are enjoying the fruits of inequity seek to 
oppose all inquiry on the one hand and, in the face of 
popular disapproval, attempt to subvert the system that 
has been adopted, they must expect arbitrary treatment, 
at times, as a reward. 

Many of the men of wealth and highest ability are 
beginning to recognize the fact. In the large cities, es- 
pecially where, on account of the greater inducement to 
control, the public interests have suffered most, the lead- 
ers in industrial affairs and professional life, those who 
have pushed their way to the head of large corporate es- 
tablishments and business associations, those who lead 
in the legal profession, and in journalism, in short, the 



468 THE GROWTH OF DEMOCRACY. 

recognized leaders in the affairs of life, are beginning to 
take the lead in the political activities represented in 
these independent citizen organizations. The Reform 
Club of New York City, the Municipal Voters' League 
of Chicago, and many other societies, are largely made 
up of such. These natural leaders of men have come 
to realize the necessities for such action and the obliga- 
tion that rests upon them as citizens to assist in the ad- 
justment of our institutions to securing the public wel- 
fare. Some effort has been made to make the work more 
systematic ; to stir up the citizens to a keener perception 
of their duties; to place within the schools books that 
will give to the young American the best standards of 
political thought; to increase the number of citizen or- 
ganizations for the study of social and political condi- 
tions and their manner of treatment in the leading na- 
tions; to discuss the problems of the day as they arise, 
and endeavor to arrive at an agreement as to the best 
manner of solution. Such questions as the inequalities 
of suffrage in elections and the retention of the spoils 
system in certain departments of government are among 
the first that must demand the attention of the citizen, 
for it is by these inequalities that the politician is en- 
abled so effectively to amass the forces under his com- 
mand for the defeat of those well directed efforts of citi- 
zens who, having independent organizations, have not 
the power to cope with him in the arts of campaigning. 
In fact, the methods of citizens organized for the consid- 
eration of public questions are of a different kind. The 
citizen organization seeks to mould popular sentiment 
and to have its results shown in a "free" and "equal" 
expression. The politician seeks to win by artifice and 
corruption. The inequality of elective power as it ap- 
pears under the present system is the opportunity, the 
circumstance favorable to his success. 

By the spoils system the state is constantly holding out 



THE DUTIES OF CITIZENSHIP. 469 

to the designing an inducement for defeating the ex- 
pression of popular sentiment and corrupting the gov- 
ernment. It lessens the efficiency of the public service, 
it makes uncertain the administration of the law. The 
necessity for broadening the application of the merit sys- 
tem appears on every hand. The ability of a govern- 
ment such as our own to perform its functions with a 
proper regard for public welfare and the expansion of 
those functions as a means of providing for the ever in- 
creasing and ever broadening economic interests of the 
people depend on the highest efficiency. This cannot be 
obtained in the public service by having a new and in- 
experienced corps in the public service with every 
change in administration. By operation of the spoils 
system, the administrative, clerical and ministerial offi- 
cers and employees are turned out just as they have be- 
gun to acquire competency. They are the machinery by 
which the government is run; the question presents it- 
self to the American citizen: is it necessary to break 
down the machine and then build another one, like in 
mechanism but less efficient owing to crudeness, in or- 
der to give direction to its activities? The way that di- 
rection and control is secured in ordinary business af- 
fairs, is to get a new manager whenever the old one has 
not been able to operate a machine satisfactorily. Sup- 
pose, for example, that President Lincoln had become 
dissatisfied with the management of General Grant in 
the Virginia Campaign, and on that account he had dis- 
charged his whole army and organized a new and untried 
force to take Richmond. The sacrifice would have been 
great. The only reasonable way for Mr. Lincoln to have 
acted under such circumstances would have been to have 
retained that well organized and experienced army, but 
put a new general at its head. The same reasons apply 
in the civil as in the military service. In the military the 
principles of efficiency become a necessity, as ineffi- 



470 THE GROWTH OF DEMOCRACY. 

ciency means extermination. In the civil the principle 
of efficiency becomes equally necessary, as under the 
constantly changing economic conditions inefficiency 
means stagnation and decay — if persisted in it means the 
fall of that form of government which retains it in its 
civil service. Society at present demands a government 
which is under its direction and in touch with its inter- 
ests; it also demands a government which will be most 
efficient in the services to be rendered under its elective 
managers. Equality in elections and an efficient adminis- 
tration are essential to the success of citizen government. 

The other problems have to do with adjustments 
which will secure a reduction of the inducements to sub- 
version and control of the functions of government in 
the interest of the few and the efficient execution and 
administration of the law as established by the people 
through their agents in the interest of the many. The 
sovereign and the people being one, the highest welfare 
is secured by provisions for the execution and adminis- 
tration of the will of the sovereign as found in the au- 
thentic expression of a majority of the people. 

The existence of conditions adverse to the general 
welfare — which give opportunity for one class to live by 
"spoliation" of the other members of society — is produc- 
tive of two classes of thinkers. In political action are 
found those who, on account of personal interests, are 
for and those who are against such "change" in the estab- 
lished order as will produce an adjustment of institutions 
to the accepted norm of the modern State — the general 
welfare. In political philosophy we have, as extremists, 
the pessimist and the fatalist on the one hand and the 
revolutionist and the anarchist on the other. The pessi- 
mist tells us that conditions are deplorable but that there 
is no help for them; the only thing to do is simply to let 
things go on as they are, for a struggle would only result 
in a waste of time and energy. The fatalist admits that 



THE DUTIES OF CITIZENSHIP. 471 

the lot of the majority is harder than it should be from 
an ideal point of view, but that these conditions are the 
result of uncontrollable forces — the progress of the age — 
or that they are so ordained; that the only thing for so- 
ciety to do is to accept these conditions and labor on. 
The revolutionist would correct the evils by first tearing 
down the entire political establishment and then erecting 
another better suited to his ideals of government. The 
anarchist prescribes a permanent demolition of the social 
political fabric ; that individual prowess be the rule. Thus 
the strong individual may be allowed to develop and ex- 
ercise his highest powers unhampered by the social con- 
straints established to protect weaklings. The effects of 
pessimism upon the political activities of a people may be 
seen in the history of India and China. The results of 
revolutionary doctrine appear in France. The tenets of 
the anarchist are found in the writings of Herr Most, 
Ragnar Redbeard and others. Mr. George Harris and 
Prof. Bernard Moses may be considered as representa- 
tives of the modern fatalist. 1 



1 The recent publication of Mr. Harris' "Inequality and 
Progress" is fairly representative of fatalism when viewed from 
the standpoint of the individual. The individual is born that 
way, therefore he cannot expect to be anything other than he 
is and when the State interferes it stands in the way of progress. 
The work of Prof. Moses, "Democracy and Social Growth," 
first postulates that democracy is based on the assumption of 
equality. He then proceeds to show that the whole tendency 
of the age has been in the direction of inequality. That the 
modern economic systems based on division of labor, differentia- 
tion of industry, centralization of control, etc., have served to 
drive the extremes wider apart; that the whole modern co- 
operative system is productive of greater inequality. Therefore, 
the reader is left to the conclusion that democracy is ultimately 
doomed. The method employed by the first class, that repre- 
sented by Mr. Harris, is that of begging the whole question. 
They at first set up a "straw man" and then proceed to its com- 
plete demolition. The method employed by the latter class, 
that represented by Prof. Moses, is that of using a very partial 
statement of facts from which they draw their conclusions. 
While their statements of fact relative to the economic tendency 
may be granted, they seem to have entirely ignored the facts 
that, while this economic evolution has been going on, govern- 



472 THE GROWTH OF DEMOCRACY. 

The experience of the past gives little color to the doc- 
trines of any of these extremists in political thought. 
When we consider the conditions that have confronted 
our people; that during the last century our population 
has increased from about five millions to seventy-five 
millions; that this population has spread from a narrow 
line of settlement along the Atlantic seaboard across the 
continent, over an area larger than all Europe; that, in 
the course of this expansion, immigrants have poured in 
from every quarter — people who have lived under a di- 
versity of governments, having diverse ideals, accus- 
tomed to an environment quite different from our own; 
that many of these people have been so oppressed in 
foreign lands that they had come to oppose all govern- 
ment; that by colonization and expansion the people in 
new areas have been continually forming new States; 
that the first federation of thirteen has now expanded till 
it includes nearly fifty Commonwealths, each having a 
government of its own establishment, exercised under the 
general plan ; when we further consider that during 
this process of broadening territorial jurisdiction and 
rapid increase in population still greater social and eco- 
nomic changes have taken place, making new adapta- 
tions necessary ; that under all these conditions of change 
the people have in an orderly and conservative manner 
modified their laws and institutions so as to adapt them 

ment, both in America and the leading European countries, has 
been growing more democratic; that, during this time, the con- 
tent of the "political state" has been broadened; that the qualifi- 
cations for suffrage and office holding have been diminished; 
that the rights of participation in acts of government have been 
extended; that the whole tendency of the age, politically speak- 
ing, has been toward a decrease of the powers of the extremes 
represented by conquerors on the one hand and revolutionists on 
the other, and toward an increase in the powers of the common 
people — the middle class, those who are most nearly on a basis 
of equality from every point of view. As these facts have been 
ignored, so too has the fact that our laws, both public and 
private, have been continually remodeled to the end of maintain- 
ing an equality, political and legal, theretofore wholly unknown. 



THE DUTIES OF CITIZENSHIP. 473 

to the growing and varying needs of an empire; that they 
have, with few precedents to guide them, established and 
maintained a government which has stood the test of 
one civil and three foreign wars; that they have, under 
these adverse conditions, not only been able to meet 
every crisis, civil and military, which has presented it- 
self, but at the same time have given to the world some 
of its highest ideals of government; when we consider 
all this, it is with pride and gratitude that we reflect 
on the grandeur and strength of our sovereign, the Peo- 
ple of the United States. The accomplishments of the 
past assure us that there will be a successful issue of 
the political questions of to-day. We may look to the 
future with confidence that conflicts of interest will be 
adjusted and such modifications made from time to time 
as may be necessary to adjust our institutions to the se- 
curity of the general welfare of the nation. 



APPENDIX. 



I. 



CORRUPT PRACTICE ACTS OF GREAT BRITAIN. 

The Public General Statutes, 46 and 47 Vict., ch. 51. 
The Law Reports, 1883, pp. 242-285. 

An act for the better prevention of Corrupt and Illegal 
Practices in Parliamentary Elections. [25th August, 
1883.] 

Be it enacted by the Queen's most Excellent Majesty, 
by and with the advice and consent of the Lords, Spirit- 
ual and Temporal, and Common, in this present Parlia- 
ment assembled, and by the authority of the same, as 
follows : 

CORRUPT PRACTICES. 

1. Whereas, under section four of the Corrupt Prac- 
tice Prevention Act, 1854, persons other than candidates 
at Parliamentary Elections are not liable to any punish- 
ment for treating, and it is expedient to make such per- 
sons liable; be it therefore enacted in substitution for 
said section four as follows: 

(1) Any person who corruptly, by himself, or by 
any other person, either before, during or after an 
election, directly or indirectly, gives or provides, or 
pays wholly or in part the expense of giving or pro- 
viding any meat, drink, entertainment or provision to 
or for any person for the purpose of corruptly influ- 
encing that person or any other person to give or re- 
frain from giving his vote at the election, or on ac- 
count of such person or any other person having voted 
or refrained from voting, or bring about to vote or 
refrain from voting at such election, shall be guilty 
of treating. 

475 



476 APPENDIX. 

(2) And every person who corruptly accepts or 
takes any such meat, drink, entertainment or provis- 
ion shall also be guilty of treating. 

2. Every person who shall directly or indirectly, by 
himself or by any other person on his behalf, make use 
of or threaten to make use of any force, violence or re- 
straint, or inflict or threaten to inflict, by himself or any 
other person, any temporal or spiritual injury, damage, 
harm or loss upon or against any person in order to 
induce or compel such person to vote or refrain from 
voting, or on account of such person having voted or re- 
frained from voting at any election, or who shall, by 
abduction, duress or any fraudulent device or contin- 
uance, impede or prevent the free exercise of the fran- 
chise of any elector, or shall thereby compel, induce or 
prevail upon any elector either to give or to refrain from 
giving his vote at any election, shall be guilty of undue 
influence. 

3. The expression "corrupt practice" as used in this 
act means any of the following offenses, namely, treat- 
ing and undue influence, as defined by this act, and bri- 
bery and personation, as defined by the enactments set 
forth in Part III. of the Third Schedule to this act, 1 and 
aiding, abetting, counselling and procuring the commis- 
sion of the offense of personation; and every offense 
which is a corrupt practice within the meaning of this act 
shall be a corrupt practice within the meaning of the 
Parliamentary Elections Act, 1868. 

4. Where, upon trial of an election petition respect- 
ing an election for a county or borough, the election 
court, by the report made to the Speaker in pursuance 
of section eleven of the Parliamentary Elections Act, 
1868, reports that any corrupt practice other than treat- 
ing or undue influence has been proved to have been 
committed in reference to such election by or with the 

1 The enactments referred to. and which define bribery and 
personation, are the following: The Corrupt Practices Preven- 
tion Act, 1854. 17 and 18 Vict., C. 102. §§ 2, 3; The Representa- 
tion of the People Act. 1867. 30 and 31 Vict., C. 102, § 49: The 
Representation of the People Act, 1868. 31 and 32 Vict., C. 48, § 
49; The Ballot Act, 1872, 35 and 36 Vict., C. 33. § 24; The Uni- 
versities Elections Amendment Act, 1881, 44 and 45 Vict., C. 40, 
§2. 



CORRUPT PRACTICES. 477 

knowledge and consent of any candidate at such elec- 
tion, or that the offense of treating or undue influence 
has been proved to have been committed in reference to 
such election by any candidate at such election, that 
candidate shall not be capable of even being elected to 
or sitting in the House of Commons for the said county 
or borough, and if he has- been elected, his election 
shall be void; and he shall further be subject to the same 
incapacities as if at the date of the said report he had 
been convicted of an indictment of a corrupt practice. 

5. Upon the trial of an election petition respecting 
an election for a county or borough, in which a charge 
is made of any corrupt practice having been committed 
in reference to such election/ the election court shall re- 
port in writing to the Speaker (of the House) whether 
any of the candidates at such election has been guilty by 
his agents of any corrupt practice in reference to such 



2 Instead of leaving the question to a political body domi- 
nated by the successful party, the English system provides that 
"The trial of every Election Petition shall be conducted before 
a Puisne Judge of One of Her Majesty's Superior Courts of 
Common Law." This court is to be made up as follows: "The 
members of each of the Courts of Queen's Bench, Common 
Pleas, and Exchequer in England and Ireland shall respectively, 
on or before the Third Day of Michaelmas Term in every year, 
select, by a majority of votes, one of the Puisne Judges of such 
court, not being a member of the House of Lords, to be placed 
on the Rota for the Trial of Election Petitions during the ensu- 
ing year." The trial is without a jury, and "at the conclusion of 
the Trial the Judge who tried the Petition shall determine 
whether the member whose Return or Election is complained of, 
or any and what other Person, was duly elected, or whether the 
election was void, and shall forthwith certify in writing such 
Determination to the Speaker, and upon such Certificate being 
given such Determination shall be final to all Intents and Pur- 
poses." Where any charge of corrupt practice is made the court 
is also required to find "(a) whether any corrupt Practice has 
or has not been proved to have been committed by or with the 
knowledge and consent of any Candidate at such Election, and 
the nature of such corrupt Practice; (b) The names of all Per- 
sons (if any) who have been proved to have been guilty of any 
corrupt Practice; (c) whether corrupt Practices have or wheth- 
er there is Reason to believe that corrupt Practices have ex- 
tensively prevailed at the Election to which the Petition relates." 
The Judge may also at any time make a special report as to 
matters arising in the course of the trial which in his judg- 
ment ought to be submitted to the House of Commons. See 
Act 1868. 



478 APPENDIX. 

election; and if the report is that any candidate at such 
election has been guilty by his agents of any corrupt 
practice in reference to such election, that candidate 
shall not be capable of being elected to or sitting in the 
House of Commons for such county or borough for 
seven years after the date of the report, and if he has 
been elected his election shall be void. 

6. (i) A person who commits any corrupt practice 
other than personation, or aiding, abetting, counselling, 
or procuring the commission of the offense of persona- 
tion, shall be guilty of a misdemeanor, and upon con- 
viction or indictment shall be liable to be imprisoned, 
with or without hard labor, for a term not exceeding 
one year, or to be fined any sum not exceeding two 
hundred pounds. 

(2) A person who commits the offense of persona- 
tion, or of aiding, abetting, counselling, or procuring 
the commission of that offense, shall be guilty of felony, 
and any person convicted thereof on indictment shall be 
punished by imprisonment for a term not exceeding two 
years, together with hard labor. 

(3) A person who is convicted on the indictment of 
any corrupt practice shall (in addition to any punish- 
ment as above provided) be not capable during a period 
of seven years from the date of his conviction: 

(a) Of being registered as an elector or voting at 
any election in the United Kingdom, whether it be a 
parliamentary election or an election for any public 
office within the meaning of this act; or 

(b) Of holding any public or judicial office within 
the meaning of this act ; and if he holds any such office 
the office shall be vacated. 

(4) Any person so convicted of a corrupt practice in 
reference to any election shall also be incapable of being 
elected to and of sitting in the House of Commons dur- 
ing the seven years next after the date of his conviction, 
and if at that date he has been elected to the House of 
Commons his election shall be vacated from the time of 
such conviction. 



ILLEGAL PRACTICES. 479 



ILLEGAL PRACTICES. 

7. (1) No payment or contract for payment shall, for 
the purpose of promoting or procuring the election of a 
candidate at any election be made — 

(a) On account of the conveyance of electors to or 
from the poll, whether for the hiring of horses or car- 
riages, or for railway fares or otherwise; or 

(b) To an elector on account of the u-se'of any house, 
land, building, or premises for the exhibition of any 
address, bill, or notice, or on account of the exhibi- 
tion of any address, bill, or notice; or 

(c) On account of any committee room in excess of 
the number allowed in the first schedule of this act. 

(2) Subject to such exceptions as may be allowed in 
pursuance of this act, if any payment or contract for 
payment is knowingly made in contravention of this sec- 
tion either before, during, or after an election, the per- 
son making such payment or contract shall be guilty 
of an illegal practice, and any person receiving such 
payment or being a party to any such contract, know- 
ing the same to be in contravention of this act, shall 
also be guilty of an illegal practice. 

(3) Provided that where it is the ordinary business of 
an elector as an advertising agent to exhibit for pay- 
ment bills and advertisements, a payment to or con- 
tract with "such elector, if made in the ordinary course 
of business, shall not be deemed to be an illegal practice 
within the meaning of this section. 

8. (1) Subject to such exception as may be allowed 
in pursuance of this act, no sum shall be paid and no 
expense shall be incurred by a candidate at an election 
* * * on account of or in respect of the conduct or 
management of such election, in excess of any maximum 
amount in that behalf specified in the first schedule to 
this act. 

(2) Any candidate or election agent who knowingly 
acts in contravention of this section shall be guilty of 
an illegal practice. 

9. (1) If any person votes or induces or procures any 
person to vote at any election, knowing that he or such 



480 APPENDIX. 

person is prohibited, whether by this or any other act, 
from voting at such election, he shall be guilty of an 
illegal practice. 

(2) Any person who, before or during an election, 
knowingly publishes a false statement of the withdrawal 
of a candidate at such election for the purpose of pro- 
moting or procuring the election of another candidate, 
shall be guilty of an illegal practice. 

(3) Provided that a candidate shall not be liable, nor 
shall his election be avoided, for any illegal practice un- 
der this section committed by his agent other than his 
election agent. 

10. A person guilty of an illegal practice, whether 
under the foregoing sections or under the provisions 
hereinafter contained in this act, shall, on summary 
conviction, be liable to a fine not exceeding one hun- 
dred pounds, and be incapable, during a period of five 
years from the date of his conviction of being registered 
as an elector or voting at any election (whether it be 
a parliamentary election or an election for a public office 
within the meaning of this act) held for or within the 
county or borough in which the illegal practice has been 
held. 

11. Whereas, by sub-section fourteen of section 
eleven of the Parliamentary Elections Act, 1868, it is pro- 
vided that where a charge is made in an election peti- 
tion of any corrupt practice having been committed at 
the election to which the petition refers, the judge shall 
report in writing to the Speaker as follows: — 

(a) " Whether any corrupt practice has or has not 
" been proved to have been committed by or with the 
" knowledge and consent of any candidate at such 
"election, and the nature of such corrupt practice; 

(b) " The names of all persons, if any, who have 
" been proved at the trial to have been guilty of any 
" corrupt practice; ' 

(c) " Whether corrupt practices have, or whether 
" there is reason to believe corrupt practices have ex- 
" tensively prevailed at the election to which the prac- 
" tice relates;" 

And whereas, it is expedient to extend the said sub- 
section to illegal practices, 



ILLEGAL PRACTICES. 



481 



Be it therefore enacted as follows: Subsection fourteen 
of section eleven of the Parliamentary Elections Act, 
1868, shall apply as if that subsection were herein re- 
enacted with the substitution of illegal practices within 
the meaning of this act for corrupt practice; and upon 
the trial of an election petition respecting an election for 
a county or borough, the election court shall report in 
writing to the Speaker the particulars required by the 
subsection as herein re-enacted, and shall also report 
whether any candidate at such election has been guilty by 
his agents of any illegal practice within the meaning of 
this act in reference to such election, and the following- 
consequences shall ensue upon the report by the election 
court to the Speaker: (that is to say) 

(a) If the report is that any illegal practice has been 
proved to have been committed in reference to such 
election by or with the knowledge and consent of any 
candidate at such election, that candidate shall not be 
capable of being elected to or sitting in the House of 
Commons for the said county or borough for seven 
years next after the date of the report, and if he has 
been elected his election shall be void; and he shall 
further be subject to the same incapacities as if at the 
date of the report he had been convicted of an illegal 
practice; and 

(b) If the report is that a candidate at such elec- 
tion has been guilty by his agents of any illegal practice 
in reference to such election, that candidate shall not 
be capable of being elected to or sitting in the House 
of Commons for the said county or borough during 
the Parliament for which the election was held, and if 
he has been elected, his election shall be void. 

12. Whereas, by the Election Commissioners' Act, 
1852, as amended by the Parliamentary Elections Act, 
1868, it is enacted that where a joint address of both 
Houses of Parliament represents to Her Majesty that an 
election court has reported to the Speaker that corrupt 
practices have, or that there is reason to believe that cor- 
rupt practices have extensively prevailed at an election 
in any county or borough, and prays Her Majesty to 
cause inquiry under that act to be made by persons 
named in such address (being qualified as therein men- 
tioned), it shall be lawful for Her Majesty to appoint 

31 



482 APPENDIX. 

such persons to be election commissioners for the pur- 
pose of making inquiry into the existence of such cor- 
rupt practices; 

And whereas, it is expedient to extend the said enact- 
ments to the case of illegal practices: 

Be it therefore enacted as follows: 

When election commissioners have been appointed in 
pursuance of the Election Commissioners' Act, 1852, and 
the enactments amending the same, they may make in- 
quiries and act and report as if corrupt practices in said 
act and the enactments amending the same included ille- 
gal practices; and the Election Commissioners' Act, 1852, 
shall be construed with such modifications as are neces- 
sary for giving effect to this section, and the expression 
corrupt practice in that act shall have the same meaning 
as in this act. 

ILLEGAL PAYMENT, EMPLOYMENT AND HIRING. 

13. Where a person knowingly provides money for 
any payment which is contrary to the provisions of this 
act, or for any expense incurred in excess of any maxi- 
mum amount allowed by this act, or for replacing any 
money expended in any such payment or expenses, ex- 
cept where the same may have been previously allowed 
in pursuance of this act, to be an exception, such person 
shall be guilty of illegal payment. 

14. (1) A person shall not let, lend, or employ for 
the purpose of the conveyance of electors to and from 
the poll any public stage or hackney, carriage, or any 
horse or other animal kept or used for drawing the same, 
or any carriage, horse or other animal which he keeps or 
uses for the purpose of letting out for hire, and if he 
lets, lends, or employs such carriage, horse, or other ani- 
mal, knowing that it is intended to be used for the pur- 
pose of conveyance of electors to or from the poll, he 
shall be guilty of an illegal hiring. 

(2) A person shall not hire, borrow, or use for the 
purpose of the conveyance of electors to or from the poll 
any carriage, horse, or other animal which he knows the 
owner thereof is prohibited by this section to let, lend or 
employ for that purpose; and if he does so he shall be 
guilty of illegal hiring. 



PAYMENT, EMPLOYMENT, ETC 483 

(3) Nothing in this act shall prevent a carriage, horse, 
or other animal being let to or hired, employed, or used 
by an elector or several electors at their joint cost, for 
the purpose of being conveyed to or from the poll. 

(4) No person shall be liable to pay any duty or to 
take out a license for any carriage by reason only of such 
carriage being used without payment or promise of pay- 
ment for the conveyance of electors to or from the poll 
at an election. 

15. Any person who corruptly induces or procures 
any other person to withdraw from being a candidate at 
an election, in consideration of any payment or promise 
of payment, shall be guilty of illegal payment, and any 
person withdrawing, in pursuance of such inducement or 
procurement, shall also be guilty of illegal payment. 

16. (1) No payment or contract for payment shall, 
for the purpose of promoting or procuring the election 
of a candidate at any election, be made on account of 
bands of music, torches, flags, banners, cockades ribbons, 
or other marks of distinction. 

(2) Subject to such exception as may be allowed in 
pursuance of this act, if any payment or contract for pay- 
ment is made in controvention of this section, either be- 
fore, during, or after an election, the person making such 
payment shall be guilty of illegal payment, and any per- 
son making such contract or seeking such payment shall 
be guilty of illegal payment if he knew the same was 
made contrary to law. 

17. (1) No person shall, for the purpose of promot- 
ing or procuring the election of a candidate at any elec- 
tion, be engaged or employed for payment or promise of 
payment for any purpose or in any capacity whatever 
except for any purposes or capacities mentioned in the 
first and second parts of the First Schedule of this act, 
or except so far as payment is authorized by the first or 
second acts of the First Schedule to this act. 

(2) Subject to such exception as may be allowed in 
pursuance of this act, if any person is engaged or em- 
ployed in contravention of this section, either before, dur- 
ing, or after an election, the person engaging or employ- 
ing him shall be guilty of illegal employment, and the 



484 APPENDIX. 

person so engaged or employed shall also be guilty of 
illegal employment if he knew that he was engaged or 
employed contrary to law. 

1 8. Every bill, placard, or poster having reference to 
an election shall bear upon the face thereof the name 
and address of the printer and publisher thereof; and 
any person printing, publishing, or posting, or causing to 
be printed, published, or posted, any such bill, placard, 
or poster as aforesaid which fails to bear upon the face 
thereof the name and address of the printer and pub- 
lisher shall, if he is the candidate, or the election agent 
of the candidate, be guilty of an illegal practice, and if 
he is not the candidate or the election agent of the candi- 
date, shall be liable on summary conviction to a fine not 
exceeding one hundred pounds. 

19. The provisions of this act prohibiting certain pay- 
ments and contracts for payments, and the payment of 
any sum, and the incurring of any expense in excess of a 
certain maximum, shall not affect the right of the cred- 
itor, who, when the contract was made or the expense 
incurred, was ignorant of the same being in contraven- 
tion of this act. 

20. (a) Any premises on which the sale by wholesale 
or retail, of any intoxicating liquor is authorized by 
license (whether the license be for consumption on or off 
the premises), or 

(b) Any premises where any intoxicating liquor is 
sold, or is supplied to members of a club, society, or as- 
sociation other than a permanent political club, or 

(c) Any premises whereon refreshment of any kind, 
whether food or drink, is ordinarily sold for consump- 
tion on the premises, or 

(d) The premises of any public elementary school in 
receipt of an annual parliamentary grant, or any part 
of such premises, shall not be used as a committee 
room for the purpose of promoting or procuring the 
election of a candidate at an election, and if any per- 
son hires or uses any such premises or any part thereof 
for a committee room he shall be guilty of illegal 
hiring, and the person letting such premises or part, if he 
knew it was intended to use the same as a committee 
room, shall also be guilty of illegal hiring. 

Provided that nothing in this section shall apply to 



ELECTION EXPENSES. 485 

any part of such premises which is ordinarily let for the 
purpose of chambers or offices or the holding of public 
meetings or of arbitration, if such part has a separate en- 
trance and no direct communication with any part of the 
premises on which any intoxicating liquor or refreshment 
is sold or supplied as aforesaid. 

21. (i) A person guilty of the offense of illegal pay- 
ment, employment, or hiring, shall, on summary convic- 
tion, be liable to a fine not exceeding one hundred 
pounds. 

(2) A candidate or an election agent of a candidate 
who is personally guilty of an offense of illegal payment, 
employment, or hiring, shall be guilty of an illegal prac- 
tice. 

EXCUSE AND EXCEPTION FOR CORRUPT OR ILLE- 
GAL PRACTICE OR ILLEGAL PAYMENT, 
EMPLOYMENT OR HIRING. 

22 and 23. Where it appears upon trial that no cor- 
rupt or illegal practice was committed by the candidate 
or his agent, and that such candidate and his agent took 
all reasonable precautions, and that the offenses were 
trivial, unimportant and of limited character, and that 
in all other respects the election was free from any cor- 
rupt or illegal practice, or where it is shown to the High 
Court or any election court by such evidence as seems 
to the court sufficient — that any act which would 
be a payment, engagement, employment or contract in 
contravention of law, or in excess of the maximum limit, 
arose from inadvertence or from accidental malcalculation, 
or from some reasonable cause, and in good faith, and un- 
der the circumstances it seems to the court to be just that 
the candidate and his agent should not be subject to the 
consequences of this act — the court may order that such 
act or omission be an exception and the person not sub- 
ject to the consequences. 

ELECTION EXPENSES. 

24. (1) On or before the day of nomination at an 
election, a person shall be named by or on behalf of each 
candidate as his agent for such election (in this act re- 
ferred to as the election agent). 



486 APPENDIX. 

(2) A candidate may name himself as election agent, 
and thereupon shall, so far as circumstances admit, be 
subject to the provisions of this act both as a candidate 
and as an election agent, and any reference in this act to 
an election agent shall be construed to refer to the candi- 
date acting in his capacity of election agent. 

(3) On or before the day of nomination the name and 
address of the election agent of each candidate shall be 
declared in writing by the candidate or some other per-, 
son on his behalf to the returning officer, and the return- 
ing officer shall forthwith give public notice of the name 
and address of every election agent so declared. 

(4) One election agent only shall be appointed for 
each candidate, but the appointment, whether the election 
agent appointed be the candidate himself or not, may be 
revoked, and in the event of such revocation on his death, 
whether such event be before, during, or after the elec- 
tion, then forthwith another election agent shall be ap- 
pointed, and his name and address declared in writing to 
the returning officer, who shall forthwith give public no- 
tice of the same. 

25. (1) In the case of the elections specified in that 
behalf in the First Schedule of this act, an election agent 
of a candidate may appoint the number of deputies 
therein mentioned (which deputies are in this act referred 
to as sub-agents), to act within different polling districts. 

(2) As regards matters in a polling district the elec- 
tion agent may act by the sub-agent for that district, and 
anything done for the purposes of this act, by or to the 
sub-agent in his district, shall be deemed to be done by 
or to the election agent, and any act or default of a sub- 
agent which, if he were the election agent, would be an 
illegal practice or other offense against this act, shall be 
an illegal practice and offense against this act committed 
by the sub-agent, and the sub-agent shall be liable to 
punishment accordingly; and the candidate shall suffer 
the like incapacity as if the said act or default had been 
the act or default of the election agent. 

(3) One clear day before the polling the election agent 
shall declare in writing the name and address of every 
sub-agent to the returning officer, and the returning 
officer shall forthwith give public notice of the name and 
address of every sub-agent so declared. 



ELECTION EXPENSES. 487 

(4) The appointment of a sub-agent shall not be" va- 
cated by the election agent who appointed him ceasing 
to be election agent, but may be revoked by the election 
agent for the time being of the candidate, and in the 
event of such revocation or of the death of a sub-agent 
another sub-agent may be appointed, and his name and 
address shall be forthwith declared in writing to the re- 
turning officer, who shall forthwith give public notice of 
the same. 

26. (1) An election agent at an election for a county 
or borough shall have within the county or borough, or 
within any county of a city or town adjoining thereto, 
and a sub-agent shall have within his district, or within 
any county of a city or town adjoining thereto, an office or 
place to which all claims, notices, writs, summons, and 
documents may be sent, and the address of such office or 
place shall be declared at the same time as the appoint- 
ment of said agent to the returning officer, and shall be 
stated in the public notice of the name of the agent. 

(2) Any claim, notice, writ, summons, or document 
delivered at such office or place and addressed 1 to the 
election agent or sub-agent, as the case may be, shall be 
deemed to have been served on him, and every such 
agent may, in respect of any matter connected with the 
election in which he is acting, be sued in any court hav- 
ing jurisdiction in the county or borough in which said 
office or place is situate. 

27. (1) The election agent of a candidate by himself 
or by his sub-agent shall appoint every polling agent, 
clerk, and messenger employed for payment on behalf of 
the candidate at an election, and hire every committee 
room hired on behalf of the candidate. 

(2) A contract whereby any expenses are incurred on 
account of or in respect of the conduct or management 
of an election shall not be enforceable against a candi- 
date at such election unless made by the candidate him- 
self or by his election agent, either by himself or by his 
sub-agent; provided that the inability under this section 
to enforce such contract against the candidate shall not 
relieve the candidate from the consequences of any cor- 
rupt or illegal practice having been committed by his 
agent. 



488 APPENDIX. 

28. (1) Except as permitted by or in pursuance of this 
act, no payment and no advance or deposit shall be made 
by a candidate at an election or by any agent on behalf 
of the candidate at an election or by any agent on behalf 
of the candidate or by any other person at any time, 
whether before, during, or after such election, in re- 
spect of any expenses incurred on account of or in respect 
of the conduct or management of such election, oth- 
erwise than by or through the election agent of the can- 
didate, whether acting in person or by a sub-agent; and 
all money provided by any person other than the candi- 
date for any expenses incurred on account of or in re- 
spect of the conduct or management of the election, 
whether as gift, loan, advance, or deposit, shall be paid 
to the candidate or his election agent, and not otherwise; 

Provided that this section shall not be deemed to 
apply to a tender of security to or any payment by the 
returning officer, or to any sum disbursed by any per- 
son out of his own money for any small expense legally 
incurred by himself, if such sum is not repaid to him. 

(2) A person who makes any payment, advance, or 
deposit in contravention of this section, or pays in con- 
travention of this section any money so provided as 
aforesaid, shall be guilty of an illegal practice. 

29. (1) Every payment made by an election agent, 
whether by himself or a sub-agent, in respect of any 
expense incurred on account of or in respect of the con- 
duct or management of an election shall, except where 
less than forty shillings, be vouched for by a bill stating 
the particulars and by a receipt. 

(2) Every claim against a candidate at an election or 
his election agent in respect of any expenses incurred on 
account of or in respect of the conduct or management 
of such election which is not sent in to the election agent 
within the time limited by this act shall be barred and 
shall not be paid; and, subject to such exception as may be 
allowed in pursuance of this act, an election agent who 
pays a claim in contravention of this enactment shall be 
guilty of an illegal practice. 

(3) Except as by this act permitted, the time limited 
by this act for sending in claims shall be fourteen days 
after the day on which the candidates returned are de- 
clared elected. 



ELECTION EXPENSES. 489 

(4) All expenses incurred by or on behalf of a candi- 
date at an election, which are incurred on account of or 
in respect of the conduct or management of such elec- 
tion, shall be paid within the time limited by this act, 
and not otherwise; and subject to such exceptions as 
may be allowed in pursuance of this act, an election agent 
who makes a payment in contravention of this provision 
shall be guilty of an illegal practice. 

(5) Except as by this act permitted the time limited 
by this act for the payment of such expenses as afore- 
said shall be twenty-eight days after the day on which the 
candidates returned are declared elected. 

(6) Where the election court reports that it has been 
proved to such court by a candidate that any payment 
made by an election agent in contravention of this section 
was made without the sanction or connivance of such 
candidate, the election of such candidate shall not be 
void, nor shall he be subject to any incapacity under this 
act by reason only of such payment having been made 
in contravention of this section. 

(7) If the election agent in case of any claim sent 
in to him within the time limited by this act disputes it, 
or refuses to fail to pay it within the said period of twen- 
ty-eight days, such claim shall be deemed to be a dis- 
puted claim. 

(8) The claimant may, if he thinks fit, bring an action 
for a disputed claim in any competent court; and any 
sum paid by the candidate or his agent in pursuance of 
the judgment or order of such court shall be deemed to 
be paid within the time limited by this act, and to be an 
exception from the provisions of this act, requiring claims 
to be paid by the election agent. 

(9) On cause shown to the satisfaction of the High 
Court, such court, on application by the claimant or by 
the candidate or his election agent, may, by order, give 
leave for the payment by a candidate or his election agent 
of a disputed claim, or of a claim for any such expense as 
aforesaid, although sent in after the time in this section 
mentioned for sending in claims, or although the same 
was sent in to the candidate and not to the election 
agent. 

(10) Any sum specified in the order of leave may be 
paid by the candidate or his election agent, and when 



490 APPENDIX. 

paid in pursuance of such leave shall be deemed to be 
paid within the time limited by this act. 

30. If any action is brought in any competent court 
to recover a disputed claim against a candidate at an 
election, or his election agent, in respect of any expenses 
incurred on account or in respect of the conduct or man- 
agement of such election, and the defendant admits his 
liability, but disputes the amount of the claim, the said 
amount shall, unless the court, on the application of the 
plaintiff in the action, otherwise directs, be forthwith re- 
ferred for taxation to the master, official referee, regis- 
trar, or other proper officer of the court, and the amount 
found due on such taxation shall be the amount to be 
recovered in such action in respect of such claim. 

31. (1) The candidate at an election may pay per- 
sonal expenses incurred by him on account of or in con- 
nection with or incidental to such election to an amount 
not exceeding one hundred pounds, but any further per- 
sonal expenses so incurred by him shall be paid by his 
election agent. 

(2) The candidate shall send to the election agent 
within the time limited by this act for sending in claims 
a written statement of the amount of personal expenses 
paid as aforesaid by such candidate. 

(3) Any person may, if so authorized in writing by 
the election agent of the candidate, pay any necessary 
expenses for stationery, postage, telegrams, and other 
petty expenses, to a total amount not exceeding that 
named in the authority, but any excess above the total 
amount so named shall be paid by the election agent 

(4) A statement of the particulars of payments' made 
by any person so authorized shall be sent to the election 
agent within the time limited by this act for the sending 
in of claims, and shall be vouched for by a bill contain- 
ing the receipt of that person. 

32. (1) So far as circumstances admit, this act shall 
apply to a claim for his remuneration by an election 
agent and to the payment thereof in like manner as if he 
were any other creditor, and if any difference arises re- 
specting the amount of such claim the claim shall be a 
disputed claim within the meaning of this act, and be 
dealt with accordingly. 



ELECTION EXPENSES. 491 

(2) The account of the charges claimed by the re- 
turning officer in the case of a candidate and transmitted 
in pursuance of section four of the Parliamentary Elec- 
tions (Returning Officers) Act, 1875, shall be transmit- 
ted within the time specified in the said section to the 
election agent of the candidate, and need not be trans- 
mitted to the candidate. 

33. (1) Within thirty-five days after the day on which 
the candidates returned at an election are declared elect- 
ed, the election agent of every candidate at that election 
shall transmit to the returning officer a true return (in 
this act referred to as a return respecting election ex- 
penses) in the form set forth in the Second Schedule of 
this act or to the like effect, containing, as respects that 
candidate, — '- 

(a) A statement of all payments made by an elec- 
tion agent, together with all the bills and receipts 
(which bills and receipts are in this act included in the 
expression "return respecting election expenses"); 

(b) A statement of the amount of personal ex- 
penses, if any, paid by the candidate; 

(c) A statement of the sums paid to the returning 
officer for his charges, or, if the amount is in dispute, of 
the sum claimed and the amount disputed; 

(d) A statement of all other disputed claims of 
which the election agent is aware; 

(e) A statement of all unpaid claims, if any, of 
which the election agent is aware, in respect of which 
application has been or is about to be made to the 
High Court; 

(f) A statement of all money, securities, and equiv- 
alent of money received by the election agent from 
the candidate or any other person for the purpose of 
expenses incurred or to be incurred on account of or in 
respect of the conduct or management of the election, 
with a statement of the name of every person from 
whom the same may have been received. 

(2) The return so transmitted to the returning officer 
shall be accompanied by a declaration made by the elec- 
tion agent before a justice of the peace in the form in 
the Second Schedule of this act (which declaration is in 
this act referred to as a declaration respecting election 
expenses). 



492 APPENDIX. 

(3) Where the candidate has named himself as his 
election agent, a statement of all money, securities, and 
equivalent of money paid by the candidate shall be sub- 
stituted in the return required by this section to be trans- 
mitted by the election agent for the like statement of 
money, securities, and equivalent of money received by 
the election agent from the candidate; and the declara- 
tion by an election agent respecting election expenses 
need not be made, and the declaration by the candidate 
respecting election expenses shall be modified as speci- 
fied in the Second Schedule to this act. 

(4) At the same time that the agent transmits the 
said return, or within seven days afterwards, the candi- 
date shall transmit or cause to be transmitted to the re- 
turning officer a declaration made by him before a justice 
of the peace, in the form in the first part of the Second 
Schedule to this act (which declaration is in this act re- 
ferred to as a declaration respecting election expenses). 

(5) If in the case of an election for any county or 
borough the said return and declarations are not trans- 
mitted before the expiration of the time limited for the 
purpose, the candidate shall not, after the expiration of 
such time, sit and vote in the House of Commons as 
member for the county or borough until either such re- 
turn and declaration have been transmitted, or until the 
date of the allowance of such an authorized excuse for 
the failure to transmit the same, as in this act mentioned, 
and if he sits or votes in contravention of this enactment 
he shall forfeit one hundred pounds for every day on 
which he so sits or votes to any person who sues for 
the same. 

(6) If, without such authorized excuse as in this act 
mentioned, a candidate or an election agent fails to com- 
ply with the requirements of this section he shall be 
guilty of an illegal practice. 

(7) If any candidate or election agent knowingly 
makes the declaration required by this section falsely, he 
shall be guilty of an offense, and on conviction thereof 
on indictment shall be liable to the punishment for will- 
ful and corrupt perjury; such offense shall also be 
deemed to be a corrupt practice within the meaning of 
this act. 

(8) Where the candidate is out of the United King- 



ELECTION EXPENSES. 493 

dom at the time when the return is so transmitted to the 
returning officer, the declaration required by this section 
may be made by him within fourteen days after his re- 
turn to the United Kingdom, and in that case shall be 
forthwith transmitted to the returning officer, but the 
delay hereby authorized in making such declaration shall 
not exonerate the election agent from complying with 
the provisions of this act as to the return and declaration 
respecting election expenses. 

(9) Where, after the date at which the return respect- 
ing election expenses is transmitted, leave is given by the 
High Court for any claims to be paid, the candidate or 
his election agent shall, within seven days after the pay- 
ment thereof, transmit to the returning officer a return 
of the sums paid in pursuance of such leave accompanied 
by a copy of the order of the court giving the leave, and 
in default he shall be deemed to have failed to comply 
with the requirements of this section without such au- 
thorized excuse as in this act mentioned. 

34. (1) Where the return and declarations respect- 
ing election expenses of a candidate at an election for 
a county or borough have not been transmitted as re- 
quired by this act, or being transmitted contain some 
error or false statement, then — 

(a) If the candidate applies to the High Court or 
an election court and shows that the failure to transmit 
such return and declarations, or any of them, or any 
part thereof, or any error or false statement therein, 
has arisen by reason of his illness, or of the absence, 
death, illness, or misconduct of his election agent or 
sub-agent, or of any clerk or officer of such agent, or 
by reason of inadvertence or of any reasonable cause 
of a like nature, and not by reason of any want of good 
faith on the part of the applicant, or 

(b) If the election agent of the candidate applies 
to the High Court or an election court and shows that 
the failure to transmit the return and declarations which 
he was required to transmit, or any part thereof, or any 
error or false statement therein, arose by reason of his 
illness or of the death or illness of any prior election 
agent of the candidate, or of the absence, death, ill- 
ness, or misconduct of any sub-agent, clerk, or officer 
of an election agent of the candidate, or by reason of 



494 APPENDIX. 

inadvertence or of any reasonable cause of a like na- 
ture, and not by reason of want of good faith on the 
part of the applicant, the court may, after such notice 
of the application in the said county or borough, and 
on production of such evidence of the grounds stated 
in the application, and of the good faith of the applica- 
tion, and otherwise, as to the court seems fit, make 
such order for allowing an authorized excuse for the 
failure to transmit such return and declaration or for 
an error or false statement in such return and declara- 
tion, as to the court seems just. 

(2) Where it appears to the court that any person be- 
ing or having been election agent or sub-agent has re- 
fused or failed to make such return or to supply such 
particulars as will enable the candidate and his election 
agent respectively to comply with the provisions of this 
act as to the return and declaration respecting election 
expenses, the court, before making an order allowing the 
excuse as in this section mentioned shall order such per- 
son to attend before the court, and on his attendance 
shall, unless he shows cause to the contrary, order him 
to make the return and declaration, or to deliver a state- 
ment of the particulars required to be contained in the 
return, as to the courts seem just, and to make or deliver 
the same within such time and to such person and in 
such manner as the court may direct, or may order him 
to be examined with respect to such particulars, and may, 
in default of compliance with such order, order him to 
pay a fine not exceeding five hundred pounds. 

(3) The order may make allowance conditional upon 
the making of the return and declaration in a modified 
form or within an extended time, and upon the compli- 
ance with such other terms as to the court seem best 
calculated to carry into effect the objects of this act; and 
an order allowing an authorized excuse shall relieve the 
applicant for the order from any liability or consequences 
under this act in respect of the matter excused by the 
court; and where it is proved by the candidate to the 
court that any act or omission of the election agent in 
relation to the return and declaration respecting election 
expenses was without the sanction or connivance of the 
candidate, and that the candidate took all reasonable 
means of preventing such act or omission, the court shall 



ELECTION EXPENSES. 495 

relieve the candidate from the consequences of such act 
or omission on the part of his election agent. 

(4) The date of the order, or if conditions or terms 
are to be complied with, the date at which the applicant 
fully complies with them, is referred to in this act as the 
date of the allowance of the excuse. 

35. (1) The returning officer at an election within 
ten days after he receives from the election agent of a 
candidate a return respecting election expenses shall pub- 
lish a summary of the return in not less than two newspa- 
pers circulating in the county or borough for which the 
election was held, accompanied by a notice of the time 
and place at which the return and declaration (including 
accompanying documents) can be inspected, and may 
charge the candidate in respect of such publication, and 
the amount of such charge shall be the sum allowed by 
the Parliamentary Elections (Returning Officers) Act, 

1875- 

(2) The return and declarations (including the ac- 
companying documents) sent to the returning officer by 
an election agent shall be kept at the office of the return- 
ing officer, or some convenient place appointed by him, 
and shall at all reasonable times during two years next af- 
ter they are received by the returning officer be open to 
inspection by any person on payment of a fee of one shil- 
ling, and the returning officer shall on demand furnish 
copies thereof or any part thereof at the price of two- 
pence for every seventy-two words. After the expiration 
of the said two years the returning officer may cause the 
said return and declarations (including the accompany- 
ing documents) to be destroyed, or, if the candidate or 
his election agent so require, shall return the same to 
the candidate. 

DISQUALIFICATION OF ELECTORS. 
Sees. 36 to 39, inclusive. 

PROCEEDINGS ON ELECTION PETITION. 
Sees. 40 to 44, inclusive. 

MISCELLANEOUS PROVISIONS. 
Sees. 45 to 49, inclusive. 



496 APPENDIX. 

LEGAL PROCEEDINGS. 
Sees. 50 to 58, inclusive. 

SUPPLEMENTARY PROVISIONS, DEFINITIONS, SAV- 
INGS AND REPEAL. 
Sees. 59 to 6y, inclusive. 

APPLICATION OF ACT TO SCOTLAND. 
Sec. 68. 

APPLICATION OF ACT TO IRELAND. 
Sec. 69. 

SCHEDULES. 
FIRST SCHEDULE. 

PART I.— PERSONS LEGALLY EMPLOYED FOR PAY- 
MENT. 

(1) The election agent and no more. 

(2) In counties one deputy agent (in this act referred 
to as a sub-agent) to act within each polling district, and 
no more. 

(3) One polling agent in each polling station, and no 
more. 

(4) In a borough one clerk and one messenger, or if 
the number of electors in the borough exceeds five hun- 
dred, a number of clerks and messengers not exceeding 
one clerk and one messenger for every complete five 
hundred electors in the borough, and if there is a num- 
ber of electors over and above any complete four hundred 
or complete five hundreds of electors, then one clerk and 
one messenger may be appointed for such number, al- 
though not a complete five hundred. 

(5) In a county for the central committee room one 
clerk and one messenger, or if the number of electors in 
the county exceeds five thousand, then a number of 
clerks and messengers not exceeding in number one 
clerk and one messenger for every complete five thou- 
sand electors in the county; and if there is a number of 
electors over and above any complete five thousand or 
complete five thousands of electors, then one clerk and 
one messenger may be employed for such number, al- 
though not amounting to a complete five thousand. 



ELECTION EXPENSES. 497 

(6) In a county a number of clerks and messengers 
not exceeding in number one clerk and one messenger 
for each polling district in the county, or where the num- 
ber of electors in a polling district exceeds five hundred, 
one clerk and one messenger for every complete five 
hundred electors in the polling district, and if there is a 
number of electors over and above any complete five 
hundred or complete five hundreds of electors, then one 
clerk and one messenger may be employed for such tium- 
ber, although not amounting to a complete five hundred ; 
Provided, always, that the number of clerks and mes- 
sengers so allowed in any county may be employed in 
any polling district where their services may be re- 
quired. 

(7) Any such paid election agent, sub-agent, polling 
clerk, clerk, and messenger may or may not be an elector 
but may not vote. 

' (8) In the case of the boroughs of East Retford, 
Shoreham, Cricklade, Muchwenlock, and Aylesbury, 
the provisions of this part of this schedule shall apply as 
if such borough were a county. 

PART II.— LEGAL EXPENSES IN ADDITION TO EX- 
PENSES UNDER PART I. 

(1) Sums paid to the returning officer for his charges 
not exceeding the amount authorized by the act. 38 and 
39 Vict., ch. 84. 

(2) The personal expenses of the candidate. 

(3) The expenses of printing, the expenses of adver- 
tising, and the expenses of publishing, issuing, and dis- 
tributing addresses and notices. 

(4) The expenses of stationery, messages, postage, 
and telegrams. 

(5) The expenses of holding public meetings. 

(6) In a borough the expenses of one committee 
room and if the number of electors in the borough ex- 
ceeds five hundred, then of a number of committee 
rooms not exceeding the number of one committee room 
for every complete five hundred electors in the borough. 

32 



498 APPENDIX. 

(7) In a county the expenses of a central committee 
room, and in addition of a number of committee rooms 
not exceeding' in number one committee room for each 
polling district in the county, and where the number of 
electors in a polling district exceeds five hundred, one 
additional committee room may be hired for every com- 
plete five hundred electors in such polling place over and 
above the first five hundred. 



PART III.— MAXIMUM OF MISCELLANEOUS MAT- 
TERS. 
PART IV.— MAXIMUM SCALE. 
PART V.— GENERAL PROVISIONS. 

SECOND SCHEDULE. 

PART I.— FORM OF DECLARATIONS AS TO EX- 
PENSES. 

(1) Form for candidate. 

(2) Form for election agent. 

(3) Form for return of election expenses. 

(a) Receipts. 

(b) Expenditures. 



CORRUPT PRACTICE ACT OF MASSACHU- 
SETTS, 1892. — (Taken from Supplement to 
the Public Statutes, 1889-1895.) 

ELECTION EXPENSES. 

Section 1. No person shall, in order to aid or promote 
his own nomination as a candidate for public office, by 
a caucus, convention or nomination paper, directly or 
indirectly, by himself or through another person, or by 
a political committee, give, pay, expend, or contribute, 
or promise to give, pay, expend, or contribute, any 
money or other valuable thing, except for personal ex- 
penses, as hereinafter provided. 



ELECTION EXPENSES. 499 

Section 2. No person shall, in order to aid or pro- 
mote his own nomination or election to a public office, 
directly or indirectly, by himself or through another per- 
son, promise to appoint, or promise to secure or assist 
to secure the appointment, nomination or election of an- 
other person to a public position or to a position of hon- 
or, trust or emolument, except that he may announce or 
define his own choice or purpose in relation to an election 
in which he may be called to t-ake part, if he shall him- 
self be elected to the public office for which "he is a can- 
didate. 

Section 3. No person shall, in order to aid or pro- 
mote his own election to a public office, directly or indi- 
rectly, by himself or through another person, give, pay, 
expend or contribute, or promise to give, pay, expend 
or contribute, any money or valuable thing, except as 
hereinafter provided, for personal expenses and to a po- 
litical committee. 

Section 4. A candidate for nomination or election to 
a public office, and any other person, may incur and pay, 
in connection with such nomination or election, his own 
personal expenses for traveling and purposes properly 
incidental to traveling; for writing, printing and prepar- 
ing for transmission any letter, circular or other publi- 
cation which is not issued at regular intervals, whereby 
he make known his own proposition or views upon pub- 
lic or other questions; for stationery and postage, for 
telegraph, telephone and other public messenger service, 
and for other petty personal purposes; but all such ex- 
penses shall be limited to those which are directly in- 
curred and paid by him; and no person shall be required 
to include such personal expenses in any statement which 
may be required of him under this act. 

Section 5. A person who is nominated as a candidate 
for public office, by caucus, convention or nomination 
papers, and any person who shall with his own consent 
be voted for public office, may make a voluntary pay- 
ment of money or a voluntary and unconditional prom- 
ise of payment of money to a political committee as here- 
inafter defined for the promotion of the principles of the 
party which the committee represents, and for the gen- 
eral purposes of the committee. 



500 APPENDIX. 

Section 6. The term "political committee," under the 
provisions of this act, shall apply to every committee or 
combination of three or more persons who shall aid or 
promote the successive defeat of a political party or 
principle in a public election, or shall aid or take part 
in, the nomination, election or defeat of a candidate for 
public office. Every such committee shall have a treas- 
urer, who is a legal voter of the commonwealth, and 
shall cause to be kept by him detailed accounts of all 
money, and the equivalent of money, which shall 
be received by or promised to the committee, or any 
person acting under its authority or in its behalf, and of 
all expenditures, disbursements and promises of pay- 
ment or disbursements which shall be made by the com- 
mittee or any person acting under the authority or in 
its behalf; and no person, acting under the authority or 
in behalf of such committee, shall receive any money, 
or equivalent of money, or expend or disburse the same, 
until the committee has chosen a treasurer to keep its 
accounts as herein provided. 

Section 7. A person who, acting under the authority 
or in behalf of a political committee, shall receive any 
money or equivalent of money or promise of the same, 
or shall expend any money or its equivalent, or shall in- 
cur any liability to pay any money or its equivalent, shall 
at any time thereafter, on demand of the treasurer of 
such committee, and in any event within fourteen days 
after such receipt, expenditure, promise or liability, give 
to such treasurer a detailed account of the same, with 
all vouchers required by this act; and such account shall 
constitute a part of the accounts and records of such 
treasurer. 

Section 8. The treasurer of every political committee 
which shall receive or expend or disburse any money, or 
equivalent of money, or incur any liability to pay money, 
in connection with any election, if the aggregate of such 
receipts or of such expenditures, disbursements, and lia- 
bilities shall exceed twenty dollars, shall, within thirty 
days after such election, file a statement setting forth all 
receipts, expenditures, disbursements and liabilities of 
the committee and of every officer and other person act- 
ing under its authority and its behalf. Such statement 
shall include the amount in each case received, the name 



ELECTION EXPENSES. 501 

of the person or committee from whom it was received, 
and so far as practicable, the date of its receipt, and shall 
also include the amount of every expenditure or disburse- 
ment, the name of the person of committee to whom the 
.expenditure or disbursement was made, and, so far as 
practicable, the date of every such expenditure or dis- 
bursement; and, except where such expenditure or dis- 
bursement was made to another political committee, shall 
clearly state -the purposes for which it was expended or 
disbursed. The statement shall also give the date and 
amount of every existing promise or liability, both to and 
from such committee, remaining unfulfilled and in force 
at the time the statement is made, with the name of the 
person or committee to or from whom the unfulfilled 
promise or liability exists, and clearly s ( tate the purpose 
for which the promise or liability was made or incurred. 

Section 9. Every person who, acting otherwise than 
under the authority and in behalf of a political commit- 
tee having a treasurer as hereinbefore provided, receives 
money, or the equivalent of money, or expends or dis- 
burses, or promises to expend or disburse money or its 
equivalent, to an amount exceeding twenty dollars, for 
the purpose of aiding or promoting the success or defeat 
of a political party or principle, in a public election, or of 
aiding or taking part in the nomination, election or de- 
feat of a candidate for public office, shall file such state- 
ment as is herein required to be filed by a treasurer of a 
political committee, in the town or city in which he is a 
legal voter, and shall be subject to all of the require- 
ments of this act, the same as a political committee and 
the treasurer thereof; but no person other than a legal 
voter of the commonwealth shall receive, expend or dis- 
burse any money or equivalent of money, or promise to 
expend or disburse the same for either of the purposes 
above named, except for personal expenses, as herein 
provided, or under the authority and in behalf (of) a 
political committee. 

Section 10. No person shall, directly or indirectly, by 
himself or through another person, make a payment or 
promise of payment to a political committee or to an 
officer or other person acting under its authority or in 
its behalf, in any other than his own name; nor shall 
such committee, officer or other person knowingly re- 



502 APPENDIX. 

ceive a payment or promise of payment, or enter or cause 
the same to be entered, in the accounts or records of 
such committee, in any other name than that of the per- 
son by whom such payment or promise is made. 

Section n. No political committee, and no person 
acting under the authority or in behalf of a political com- 
mittee, shall demand, solicit, ask or invite a payment of 
money or promise of payment of money to be used in an 
election, from a person who has been nominated by a 
caucus, convention or nomination paper, as a candidate 
for public office in such election ; and no person so nomi- 
nated shall make any such payment in an election in 
which he is a candidate for public office, to a political 
committee or to any person acting under the authority 
or in behalf of a political committee, if such committee 
or any such person has demanded, solicited, asked or 
invited from him any such payment or promise of pay- 
ment. 

Section 12. The statement required by this act to be 
filed by a treasurer of a political committee shall be filed 
with the clerk of the city or town in which the treasurer 
as a legal voter, except that, in case a political commit- 
tee has its headquarters in some other city or town than 
that in which the treasurer is a legal voter, the treasurer 
shall file the statement required of him with the clerk 
of the city or town in which such headquarters are main- 
tained at the time of the election to which the statement 
relates. A statement relating to any other than a city 
election, or than an election on the part of a city council 
or of either branch thereof, shall be filed in duplicate, 
and one copy shall be forthwith forwarded by the city or 
town clerk receiving the same to the secretary of the 
commonwealth, by whom it shall be placed on file. Every 
person making a statement required by the provisions of 
this title shall make oath that the same is in all respects 
correct and true to the best of his knowledge and belief. 

Section 239. The supreme judicial court and the su- 
perior court shall have full equity powers to compel any 
person who fails to file a statement required by this act, 
or who files a statement which does not conform to the 
provisions of this act in respect to the truth, sufficiency 
in detail, or otherwise, to comply with the provisions of 



ELECTION EXPENSES. 503 

this act by filing such statement as is required, and may 
compel such compliance upon petition of any candidate 
voted for or of any five persons qualified to vote at the 
election on account of which the expenditures, or any 
part thereof, were made or are alleged to have been 
made. No such petition shall be brought later than sixty 
days after such election, against any one who has filed his 
account within the thirty days required, except that a 
petition may be brought within thirty days of any pay- 
ment which was now included in the statement so filed. 
Proceedings under this section shall be advanced upon 
the dockets of said courts, if requested by either party, 
so that they may be tried and decided with as little delay 
as possible. No petition brought under this title shall be 
withdrawn or discontinued without the consent of the at- 
torney-general. 

Section 240. No person called to testify in any pro- 
ceedings under the preceding section shall be liable to 
criminal prosecution under this act, or otherwise, for 
any matters or caucus in respect of which he shall be 
examined, or to which his testimony shall relate, except 
to prosecution for perjury committed in such testimony. 

Section 241. If any statements which are filed under 
the provisions of this title shall apparently fail to be in 
conformity with the requirements thereof, it shall be the 
duty of the clerk, with whom any such statement is filed, 
forthwith to notify the person making the same, of such 
failure, and to request him to amend and correct his 
statement. 

Section 242. All staterfients which are filed in accord- 
ance with the provisions of this title shall be preserved 
for not less than fifteen months from the time of the 
election to which they relate, and shall during such pe- 
riod be open to public inspection, under reasonable regu- 
lations. 

Section 243. A clerk of a town or city shall give a 
receipt for any statement which may be filed with him 
in accordance with the provisions of this title, at the re- 
quest of the person filing the same. 

Section 244. Every payment in respect of any ex- 
pense incurred which is to be accounted for under this 
act shall, unless the total expense payable to such per- 



504 APPENDIX. 

son is less than five dollars, be vouched for by a re« 
ceipted bill stating the particulars of expense, and every 
voucher, receipt or account hereby required shall be pre- 
served at least six months from the election to which 
they relate. 

Section 245. The secretary of the commonwealth 
shall, at the expense of the commonwealth, provide 
every city and town with blank forms suitable for such 
statements and receipts for statements as are required 
under the provisions of this act. Such blank forms shall 
be approved by the secretary, treasurer and auditor of 
the commonwealth, or a majority of them. 

Section 246. This act shall apply to all public elec- 
tions except elections of town officers in towns, and shall 
apply to elections by the general court (legislature) and 
by city councils, and by either branch thereof, to caucuses 
and conventions for the nomination of candidates to be 
voted for at such elections, and to nomination papers for 
the nomination of candidates to be, except that sections 
one, three, and ten of this act shall not apply to the pro- 
prietors and publishers of publications issued at the regu- 
lar intervals, in respect of the ordinary and regular 
conduct of their business as such proprietors and pub- 
lishers. 

Section 344. Whoever violates any of the provisions 
of sections one, two, three, six, seven, eleven, twelve, 
sixteen, seventeen, and twenty of this act shall be pun- 
ished by fine not exceeding one thousand dollars. Who- 
ever shall violate any of the provisions of sections eight, 
nine, and ten of this act, shall be punished by fine not 
exceeding one thousand dollars, or by imprisonment in 
jail for not more than one year, or by both such fine and 
imprisonment. 



APPENDIX. 



II. 

THE TRAMWAYS ACT OF 1870. 
33 Vict., ch. 78. 

Sec. 4. Provisional orders authorizing the construc- 
tion of tramways in any district may be obtained by — 

(1) The local authorities of such district; or by 

(2) Any person, persons, corporation, or company, 
with the consent of the local authorities of such dis- 
trict; or of the road authority of such district, where 
such district is or forms part of a highway district 
formed under the provisions of "The Highway Acts." 

Sec. 43. Where the promoters of a tramway in any 
district are not the local authority, the local authority, 
if, by resolution passed at a special meeting of the mem- 
bers constituting such local authority, they so decide, 
may, within six months after the expiration of a period 
of twenty-one years from the time when such promoters 
were empowered to construct such tramway, and within 
six months after the expiration of every subsequent pe- 
riod of seven years, or within three months after any 
other order made by the Board of Trade under either 
of the two next preceding sections, with the approval of 
the Board of Trade, by notice in writing require such 
promoters to sell, and thereupon such promoters shall 
sell to them their undertaking, or so much of the same 
as is within such district, upon terms of paying the then 
value (exclusive of any allowance for past or future prof- 
its of the undertaking, or any compensation for compul- 
sory sale, or other consideration whatever) of the tram- 

505 



506 APPENDIX. 

way, and all lands, buildings, works, material, and plant 
of the promoters suitable to and used by them for the 
purpose of their undertaking within such district, such 
value to be in case of difference determined by an en- 
gineer or other fit person nominated as referee by the 
Board of Trade on the application of either party, and 
the expenses of the reference to be borne and paid as the 
referee directs; and when any such sale has been made, 
all the right, powers, and authorities of such promoters 
in respect to the undertaking sold, or where any order 
has been made by the Board of Trade under either of the 
next preceding sections, all the rights, powers, and au- 
thorities of such promoters previous to the making of 
such order in respect of the undertaking sold, shall be 
transferred to, vested in, and may be exercised by the au- 
thority to whom the same has been sold, in like manner 
as if such tramway was constructed by such authority 
and under the powers conferred upon them by a provis- 
ional order under this act, and in reference to the same 
they shall be deemed to be the promoters. 

LAWS WIS. 1897, CH. 370. 

AN ACT REGULATING THE GRANTING OF FRAN- 
CHISES IN VILLAGES AND CITIES. 

Section 1. No grant shall be made by any village or 
city, which shall be governed by the provisions of this 
act, to any person, persons, or corporations of a right or 
franchise to establish, maintain or operate a street rail- 
way system, gas or electric plant, water-works or tele- 
phone system, or any other franchise for carrying on 
business within such village or city where the use of the 
streets or alleys of such village or city is granted in the 
franchise except as herein provided. 

Section 2. Prior to the granting of any such fran- 
chise, the village board or city council shall cause to 
be prepared full specifications containing the rules and 
regulations for the maintenance and operation of the 
plant, and for the conduct of the business for which such 
franchise is to be granted. Said specifications shall con- 
tain a maximum rate which may be charged to patrons 
or consumers under said franchise, and shall provide for 



GRANTING OF FRANCHISES. 507 

annual statements sworn to by the managers and the 
treasurer of the company operating under said franchise, 
of the gross receipts for such business carried on under 
such franchise, to be made to the board of trustees or 
common council of such village or city, except that state- 
ments of gross receipts need not be made when the fran- 
chise is granted, as provided for in section 4 of this act; 
and provided further that the terms of all franchises 
granted hereunder, shall be unalterable by the common 
council or village board without the consent of the 
grantees thereunder. 

Section 3. The village board, or common council, 
shall advertise for bids for such franchise for at least 
three weeks in at least three papers of general circula- 
tion, printed in the English language, one paper to be 
the official paper, if any, of such village or city, one pa- 
per to be published in the- largest city in the state, and 
one to be a trade paper devoted to the business to be car- 
ried on under such franchise. Such advertisements shall 
refer to the specifications, and shall request proposals to 
be submitted, stating what percentage of the gross re- 
ceipts from the business carried on under the franchise 
the bidder will pay annually into the treasury of such 
village or city in consideration of the receiving of such 
franchise. All bids must be made in conformity with 
such advertisement or specifications. The village board 
and common council may reject any and all bids, but no 
bid shall be accepted unless it is the highest, and no 
franchise shall be granted except to the person or cor- 
poration offering to pay into the treasury of the village 
or city the highest percentage on the gross receipts from 
the business carried on under such franchise; provided, 
the bond of such person or corporation is satisfactory. 

Section 4. In case the franchise to be granted is an 
extension of a plant already in operation, under a fran- 
chise already granted, then the bids may be made in stated 
sums of money to be paid annually into the treasury of 
the village or city granting such franchise in lieu of the 
percentage' of the gross receipt. 

Section 5. Such specifications shall also provide that 
a certified check of an amount specified shall accompany 
each bid as a guarantee of the acceptance of the fran- 
chise, if granted, and the giving of the bond provided for, 



508 APPENDIX. 

and shall provide for the giving of a bond, satisfactory to 
such village board or city council in a specified sum by 
the bidder in case such bid is accepted, conditioned upon 
the construction, equipment and operation of the plant 
within a specifi-ed time after the acceptance of such a 
bid; provided, however, that actual work of construc- 
tion, under any franchise granted hereunder shall com- 
mence and continue in good faith- within one year after 
granting the same; and in default thereof all rights 
granted under such franchise shall be void and of no 
effect. 

Section 6. The acceptance of such bid and granting 
of such franchise shall be by resolution or ordinance of 
the village board or common council. 

Section 7. Upon the passage of such resolution or 
ordinance, all the terms, conditions, rules, and regula- 
tions contained in said specifications shall be and become 
a part of the terms and conditions of the purchase there- 
by granted, and any willful failure to comply with such 
specifications shall, at the option of the village board or 
common council, be held to wholly invalidate such fran- 
chise and annul and work a forfeiture of all rights granted 
thereunder. 

Section 8. This act shall apply to and be in- force in all 
cities and villages which shall so determine, in the man- 
ner following: If a petition signed by ten per cent of the 
duly qualified electors of any city or village, according 
to the next previous poll list thereof, be filed with the 
clerk of such city or village, twenty days before any mu- 
nicipal or general election therein, praying that the ques- 
tion of selling franchises under the provisions of this act 
be submitted to a vote of the people, such clerk shall 
print in the official ballot to be used at such election the 
question: "Shall this city or village adopt the provisions 
of chapter , of the laws of 1897, regulating the sell- 
ing of franchises?" the ans\ver of the electors to be "yes 
or no," written in the space provided therefor in the ballot. 
If a majority of the electors voting on such question vote 
"yes," then all franchises thereafter granted by such city 
or village shall be sold as provided in this act. The op- 
eration of this act may be revoked by a vote of the peo- 
ple taken in the same manner as above provided. 



GRANTING OF FRANCHISES. 509 



LAWS OF WIS. 1897, CH. 361. 

Section 5. Whenever an application shall be made to 
any common council of any city or to the board of trus- 
tees of any village, for a franchise to construct and ope- 
rate a system of water-works, or of lighting in such city 
or village, such common council or board of trustees 
may in its discretion submit such application to the elec- 
tors of such city or village at a special election to be 
called for that purpose, and such common council or 
board of trustees shall so submit such application to the 
electors of such city or village if, at or before the expira- 
tion of the publication of such franchise as required by 
chapter 148, of the laws of 1893, a petition requiring such 
submission signed by at least twenty per cent of the 
electors of such city or village, as appears by the poll list 
of the last general election, shall be presented to such 
common council or board of trustees. The notice of 
such election shall be given by the clerk of such city or 
village for the time, and as required in the case of char- 
ter elections in such city or village. * * * If a ma- 
jority of the ballots cast at such election shall be in favor 
of granting such franchise, the same shall be granted by 
the common council or board of trustees. If a majority 
of the ballots so cast shall be against granting such fran- 
chise, such franchise shall not be granted by such com- 
mon council or board of trustees. No part of this act 
shall apply to the cities of the first class, or towns con- 
taining an unincorporated village. 



APPENDIX. 



III. 



A PLAN PROPOSED FOR THE NOMINATION OF 

■ PARTY CANDIDATES AND FOR SETTLING 

PARTY ISSUES BY CONVENTION. 

The primary election is not always practical. It will 
not always serve the political ends of the people. In 
nominations for state and national elections, for example, 
the constituencies are usually too large to allow of its 
use. For these, conventions are found necessary. They 
are necessary not only for the nomination of party can- 
didates, but also for the formulation of party issues. • The 
convention system in its present form, however, is sub- 
ject to so many abuses and is so often controlled by a 
political machine that it is not well adapted to govern- 
ment of the people, by the people and for the people. 
In order to adapt the convention system to this end, 
modification is necessary. The following plan is here 
proposed : — 1 

(i) That delegates be chosen from the various pre- 
cincts by primary election, as at present, a "limited bal- 
lot being employed; 2 

(2) That the delegates thus elected, at a time speci- 
fied, meet in convention according to the system now in 
vogue. 

(3) That at this convention the following proceedings 
be had: 



1 A very similar suggestion may be found in Public Opinion, 
May 7, 1896, p. 589. 

2 For example, if a precinct be entitled to four delegates, to al- 
low each elector to cast one vote for each of two, the four re- 
ceiving the largest number of votes to be the delegates elected. 
By this means, in case there were a "ring" it could not elect 
more than one-half of the delegation. 

5ii 



512 APPENDIX. 

First, That the party issues be framed, and if there be 
any questions of difference that majority and minority 
reports be made. 

Second, That for each office to be filled at the election, 
the names of the prominent men of the party be balloted 
on till one shall have received a majority vote; and when 
a majority vote shall have been cast for anyone that 
that one and the one who shall have received the next 
highest vote on the same ballot shall be declared to be 
the candidates of the convention for nomination by the 
party. 

Third, That names be balloted on for each office suc- 
cessively till a double list of convention candidates shall 
have been chosen throughout. 

(4) That thereafter, at some time specified, the ma- 
jority and minority reports on issues and the double list 
of convention candidates be submitted to the electors of 
the party and those issues and those candidates receiv- 
ing a majority vote shall be the issues and the candidates 
of the party in the ensuing election. 

In case it is desirable to settle party issues and nomi- 
nate party candidates for county and state (or county, 
state and nation), by the convention method, this process 
might be extended in each successive convention with- 
out change till the broadest political unit had been 
reached. For example, if it be a year of presidential 
election, the county convention, held in the manner above 
set forth, might, by the use of the limited ballot, choose 
delegates to a state convention; then state issues might 
be framed, a double list of convention candidates chosen 
and delegates elected to the national convention. At 
the national convention issues might be framed and a 
double list of convention candidates chosen. Then on a 
certain day, giving sufficient time for the people to con- 
sider and discuss issues and convention candidates, the 
majority and minority reports, national, state, and coun- 
ty, and the double list of convention candidates (national, 
state, and county), might be submitted to the electors of 
the party, and those issues and those convention can- 
didates having a majority vote be declared the issues and 
candidates of the party. By requiring that only such 
convention candidates as shall have been selected in this 



NOMINATION OF CANDIDATES. 



513 



manner shall be entitled to have their names placed on 
the official ballot, the adoption of the plan would be se- 
cured. 1 

This plan is suggested for the reasons following: 
(i) Because it would insure a majority expression 
upon and the people would virtually frame the issues 
and platform of the party. 

(2) Because it would insure a majority expression 
upon, and the electors would virtually make, the party 
nominations instead of having to submit to the choice of 
a "ring." 

(3) Because the only extra effort on the part of the 
people would be that of attending one primary; and 
in this to choose between two candidates for each office 
so that the personal interest would be large and a large 
attendance at the election insured. 

(4) Because it would be the most simple way that 
can be devised for obtaining a majority expression of the 
electors. 



1 The ballot for this referendal primary would be something 
like the following: 




(The * indicates the candidates and issues voted for.) 
32 



514 APPENDIX. 

(5) Because it would be a difficult plan for the politi- 
cian to "work." 2 

(6) Because by providing a method whereby the 
office, or the people, would seek the man, there is reason 
to hope that it would so discredit office-seeking, that the 
citizen could hope to win honorable position and recog- 
nition on the part of his countrymen only by honorable 
conduct and patriotic service instead of by collusion and 
corrupt practices. 

(7) Because politics would be made honorable by 
making a political campaign a movement of the people 
instead of a scramble by placement; and in case the 
"ring" politician managed to work through the nomi- 
nating system, if all parties employed such a method, he 
could be summarily "killed" at the election. 

(8) Because such a system would not be an innova- 
tion in principle, but only a step in advance of methods 
already in vogue; in fact a combination of the conven- 
tion system and the Crawford county system. It would 
be thoroughly understood. 

(9) Because it could be put into force without the ex- 
pense and delay of changing our constitutions. 



2 The only acts required on the part of the people would be 
the choice of delegates and the ballots on issues and candidates. 
The "machine," on the other hand, in order to capture the nomi- 
nation, would be required (1) to secure a majority of the dele- 
gates in the primary election, and (2) get control of the con- 
vention. (3) Secure a majority of the electors of the party. 
(4) Having secured a majority of the party, it must then be 
able to secure a majority of the constituency in the district, 
state or nation, as against the nominee of the opposing party. 
This method, though very simple for the people, would be 
very discouraging for the politician. 



APPENDIX, 



IV. 



STATISTICS CONCERNING CAPITAL AND LABOR, 
DEBTOR AND CREDITOR, AND TAXATION. 

Showing the wages of artificers, laborers and servants as 
fixed by the justices of the peace at Chelmsford, in the county 
of Essex, on the 8th day of April, 1651, "according to the true 
meaning of the statute made in the twenty-ninth year of the 
reign of Queen Elizabeth, having a special regard and consid- 
eration to the price at this time of all kinds of victuals and ap- 
parel," etc. 



By the day By the day 

from March from Sept. 

to Sept. to March. 



By the whole 
Year. 



Occupations. -c"H 

^i 

d. 

A master mason 12 

A master rough mason. 10 
A master mason's serv- 
ants and apprentices. . 4 

A master carpenter 12 

A master carpenter jour- 
neyman and servants. 8 
A master carpenter, 
servants and appren- 
tices 6 

A master sawyer 10 

A master sawyer's la- 
borer 8 

Palers 8 

Rivers of pale, clapboard 

and laths 10 

A millwright 12 

A plowwright and cart- 
wright 10 



£2 




IT rt 
> ° 




CvS 


1 


> 


d. 


d. 


d. 


£ 


s. 


d. 


s.d. 


18 


10 


16 


4 








10 


17 


8 


14 


3 








10 


10 


3 


7 


1 


10 





8 


18 


10 


16 


4 








10 


14 


6 


12 


2 


10 





8 


12 


6 


10 


1 


4 





8 


16 


8 


14 


4 


10 





10 





8 


12 


4 








8 





8 


12 


4 








10 


18 


8 


16 


4 








10 


18 


10 


16 















18 

515 



8 16 



000 



o 



516 



APPENDIX. 



By the day 

from March 

to Sept. 



By the day 
from Sept. 
to March. 



By the whole 
Year. 



Occupations. 


u 

03 

J5 O 


3 

■2? 






be 






.-y nQ 


:-" o3 


^-O 


.« 03 


03 


> 




£ 


^ ° 


£ 


££ 


£ 


-1 



d. 

Coopers io 

A master shipwright... 16 
A hewer or common 

shipwright io 

An able clencher io 

An able holder 8 

A master calker 14 

A calker laboring by 

tide 10 

A common calker 9 

A master joiner or 

carver 10 

A master joiner or 
carver's servants and 

apprentices 8 

A master bricklayer, 
tiler. plasterer and 

shingler 6 

Second bricklayers, tilers 
and slaters, 16 to 24 

years old 10 

Their servants and ap- 
prentices, 12 to 24 

years old 8 

Brick and tile makers, 
burners of wood, ashes 

and lime 6 

Their servants and ap- 
prentices 8 

Master thatchers 6 



d. 
16 

24 

18 
18 

14 
24 

18 
16 



14 



d. 

6 

12 



7 

10 



14 
16 

14 
14 
12 
16 

14 
14 

16 



16 



14 



£ s. d. 
000 
000 

000 
000 
000 
000 

000 
000 

400 



3 10 o 

1 13 4 
400 
200 



s.d. 
o 1 
o o 



o o 

o 
o o 
o o 

o o 
o o 



6 o 



6 


6 


12 


300 


10 


1 


5 


10 


2 10 


. 10 



CAPITAL AND LABOR. 



517 



Tables showing wages of artificers, laborers, servants, etc., 
during the period as fixed by law and the justices. 



Wages of servants, laborers and artificers as See "Labor in 
fixed by the justices of the peace at Okeham, Europe and 

in the county of Rutland on the 28th day of America," by 

April, 1610. Young, p. 150. 

Wages 
per annum. 

A bailiff of husbandry, having charge of a plow i. s. d. 

land at least ... 2 12 o 

A man servant of husbandry of the best sort, 

who can 'sow, mow, thresh, make a rick, thatch 

and hedge the same and kill a hog, sheep or 

calf 2 10 o 

A servant who can drive, plow, pitch, cart and 

thresh, but cannot pertly sow and mow 1 9 o 

A boy under sixteen years of age 1 o o 

Wages of Women Servants 
A chief woman servant who can bake, brew, make 

malt and oversee other servants 1 6 8 

A girl under sixteen years of age o 14 

Wages of Millers. 
A chief miller who can pertly beat, lay, grind and 

govern his mill 2 6 o 

A common miller 1 11 8 



Wages of artificers and their From Easter to From Michaelmas 

apprentices (see above). Michaelmas. to Easter. 

fWmwtinn With Without With Without 
occupation. Meat Meat Meat Meat 

d. d. ~ d. dT 

Chief joiner, per day 6 12 4 8 

Joiner's apprentice, per day. .4 8 3 6 

Master sawyer, per day 6 12 4 8 

Plowwright, per day 5 10 4 8 

Thatcher, per day 5948 

Hurdle maker, per day 5 9 4 8 

Horse collar maker, per day. .6 10 4 8 

Master mason, per day 8 12 6 10 

Rough mason, per day 5 10 4 8 

Master carpenter, per day.... 8-14 6 14 

Expert carpenter, per day.... 5 10 4 8 
Carpenter's apprentice, per 

day 3 7 2 6 

Bricklayer, per day 5948 

Bricklayer's apprentice, per 

day 3 7 2 6 



518 



APPENDIX. 









LAWS ENACTED 


FOR THE 










Coni/ict .Cairo r JCau/S. 


trod laws. 


JintiChi- 
nese fours. 




flu Co/Matt 


Onittli/lftlta 

mus. 


Iter tc 

Compete. 


Goo 3s . 


1 


Aftf, 














e. 


am. 




1&87.§«M 










a 


till. 


Ccnj.6. 










Con"i.III^3* 


4 


Col«. 


i.89^91. ' 


JiWitf3S&l. 


187^332 " 






S 1 


Conn 














6 


mi. 




GilWflii33M 










1 


xwc. 


WSlCcfi 35. 












« 


Via. 














1 


Ga. 














p 


Ua. 


3 


Cois3flT43t 






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ftl.P £33. . 


li 


Ill 




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L89p2. 







Int. 




£80 




[Menu*. 


f II W»3M38 




yi 


la. 


mscstsw^ 


L80rhJWi* 










i» 


Kon. 




5f85§36«8. 










* 


Xa. 




IfMrXTOSWM 










» 


m. 






187ciiH9%3 


i87ch I4&4 






i! 


Ife. 


£B7ch.Wil 






* 


Ulft8£tf)86§l2 




/I 


mich. 






te 1 3a 








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/Winn. 




JL89ch«5 . 










» 


m. 


* 


tSflac/iBMKS 










a 


IUiss. 




i80f(i40S3 j 








J! 


ffiCftt. 


Gonsffl^. 










31 


Reir. 












5 


ftH. 










t 


GenSte/iKW 


J4 


n,l* 


ttS&p86p%a 






mckmu. 


1 


2« 


nMJ 


BSflJottlSSJl 




^ 


Larch 3£3tf 


i 


3 


n.fl. 




RT183M.W 






* 


L89.c4%U 


a 


o. 


*8S.\ 


£0&>9«%1.%2 






a 


Ore. 


* 


ftnSMJ 




41 


»M.ft:87c*W 


* 


"Penh. 


£Sfcfc30«»ll. 






&VMpl3WW 






i 


Tt.T. 














jj 


S.D. 












V 


Ul. 


* 


t8lA-*9ifiB*: 








3» 


irpr 














Si 


Ira 








f 


Gft.Wc».64H 




3^ 


IM» eh. 


timJUA 












17 


te/»s. 


ft&ffiSuffifl 










« 


USuc 


wSMmm 










3? 


U.S. 


fh&'ktxM | 






i 90 • " ftfff 


ummi 






*?« pi we 

tflisoCBfotfl 
V£89cft38i; 
Cco5.e:,»9. 


pioj£() cut 
U/orHS . 

ICKofyM'l PC. 

&85U0-I 
*«£8JH 


*tf(ro£89 p «7 


*isoC07pW 


del lo ucome 

f*MiP<Mlorut, 

♦Shall ifcrf- 


JSf&TisticS m, 

ftptlonil»a«r 



CAPITAL AND LABOR. 



519 



PROTECTION OF LABOR. 



Heawfincj 
TlQikLiQbcr 

TUlie Merits 



fltocfd 



•SSfli 









ticrtftfl/sfAoi 



tuition To tfe= 
duct W age* 






aire 4o 



eS- 



.aat-WriSB 



faafltogM ' 



fc*&a5taf 



£87p58ii_ 



Ccws.g.lB 



&»&88«h9<r 



L8MM& 



Cc^pffflW ' 



f 91 p 183 



qw<»w§i 



?^toS 



J!&aggchg8!:^^B f 



fegfega 



RS.8lm5^l26 



|82ch975i-i 



irBUffitaw 



St85cl#kHM ' 



MSiSM 



RSS3chl23.?o; 



St8?chW? ' 



8tf2cit74§g lMch508 



Ifa&jgSflffi 



£8?cnf3M" 



Klplgg. 



HSB9ch47» 



ftS.89§gM9 



EifiJ.*3390 



St87uc.W5 



£87 C h.94$l 



gS,pcBS€l7)o 



RS,83pWI«S3 



RSS »M»7ffiH 



GibISS^k 



wmmw 



mmm 



bStSTjJP 



pfl)rt-«iW-2 



iuuiw 1 



StttdiEtlfl 



186ch57HI 



fWchKttf 



BS830vft|733 



£87cb.l8( 



'X&lchSW 



RS80chl% 



wmm 



£87aj4&i 



|89ed58^ 



g$j»Wgg* 






roe i7. 



15206-8. 

*0'783 



TWnde4,£ 
75 ch l« 



* Htltt vacotti- 
f/ftittnal m 
SdrtWntonioKi 
tf, Wilson. 19 
S.Tf(?.9(3. 



Mfsa Jf87c* 

t/))soC90p 



520 



APPENDIX. 



Zoit/'s TWiftng for the "HealtU 
Employees. 


8*ws 


female 
6mplojyt£S. 


Streetcar 

Ccritluetons 


fte<ju!attflu3 
'Paclcnes. 


HcQUirinq 
meal TAm© 

Ufoitta)"i>0)'ile>rai 


UnJengroun* 
fimplcwmefrb 
ChilfcVtn, 


-se 

a. 


aia. 


<f,flS./lct92& 






t£8 




atk. 














C«l. 






£89 c* 9 






|* 


Colo. 


mpTsmz 




A87p6£SW 


* 


Jt85c76(il 




Conn. 






GmSf 8S<-nW5 








Bel. 


L&irtZmh 












Ga. 


OtflHciMkM 












ia«. 








t 


Cerre.fil3S4t 




111. 






tfnnJl85,.h7& 


* 


« n ,.Sr85ch93 




In3. 






£|fSH(i89eh3T 


i 


Eii$ U p.8MH*5 




la. 






McftMU 


% 


lbfc^l«jl3 




Kan. 








* 


smmns 




Jta. 


,l86to«U 




X90flrtl23 








tttf. 


CcvasiE^ttM 




fc28«chW§Wi 








Iflass. 


tt&^mwz 




l.R7«h|-/5 •*•&*! 








m«cii. 
Iflinn. 


m^tei 




JC89ch£63§fi 


aieum* 






&%hm\-z. 




£87ehll3 








Wo. 


m^mmo 




RS.Bycil5g.-r 


* 


7?Sfl9tJ7066 




rricat. 








j 


*89/>l6(Hll 




Meh 


St87Mttm 




StH7di396!?1 




,St87ch?3^ 




n.-H. 
ftj. 








X8?chi;5fel^ 






SJbfrOW 


S MP 86p37IS35 


£S7ch 177 


y 


5up86pWW 




a.y. 


R38lp«l£ 


t 


X86tn'}08'3l3 








n.u 






X90ch«HJ5)l^ 


# 


GwJrfl7Vft)9 




0. 


BSroljl[p65S^ 




189®^$ 


* 


HSUIT!)302* 




Penn 


WktHl-K 




I89ch£33 


/CB9i)rtM3?ll 


tjL85cinl10flrtii 


* 


S.C 








i 


MOcnllftSII. 




Wash. 


rsOi#m-<: 




Cons Arm SW 


T 


X87-8chg|^6 




W.l/o. 






189cM5^ 


4 


Cc2JB7p 975^3 




ftfis 




* 


T?$M3fl»W 








UTI/c 








* 


Us.flr-tZR3 




urn 














its 








* 


l<)(Hch5(/Hl2 
























■0KcflnnL&7. 
flKcflintflO 

ch39B 


*«/yoO,£lJ. 


u<ber Itfi 
t - Ifi • 
t h \«r- 

uear allows. 


Miners 



CAPITAL AND LABOR. 



521 





LAWS PROVIDING FOR THE SAFETY OF EMPLOYEES. 






c 

2orj 

u c 

s-fi 

♦5 


9 CO 

«0 £ 


o9 


sr 

5 p 


*-< 


tilt 


4» 




Si" 


<J ft 

3 5 

o £ 

5=* 


J. <3 




CUa. 


• 
























<lrK. 


























Ca\. 


*■ 


:^ 




# 


















Colo. 


* 


# 


* 


* 








*■ 










Conn. 










*• 


* 


* 


* 










Bel. 














* 


# 










mc. 














jk 












Ga. 














* 












Jia. 


























III. 


* 


* 




* 




J* 


* 


=* 










Ittf. 





* 


* 


-* 


















la. 


*■ 


# 




* 




* 














Mn. 


* 


* 


* 


* 


















Ktj. 


-* 


if 




* 


















Ca- 










* 




* 












me. 










* 




it 










! 


ma. 


* 


j* 




* 


















Mass. 










* 


-Jfc 


* 




t 








Wifl). 










* 


* 


* 






* 






Winn. 










* 




* 


* 










l?tc. 


* 




% 




* 




* 












Went. 


* 


* 






















ae'b. 










■0 




# 


* 










flfclT. 


























a.H. 














* 


* 










tu 










*r 




* 


* 










a.m. 


* 






* 


















ns. 


* 








* 


* 


* 












n.D. 














# 












P- 


* 


■*- 




* 


* 




* 












Pcnn. 


* 


* 


* 


* 


* 




# 


*- 










H.I. 














•* 












9.:D. 


Jfr 












-# 












Term. 


# 






* 


*' 
















lltati 






* 




















Ifa. 














# 












Ufash 


* 


# 


* 


* 


* 
















Otlfa 


a 


* 




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■* 
















UT.S. 














* 


* 










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* 


* 




% 


# 
















liS. 


* 


it 




*. 


















-fe.i 


= * indieafes" requires* f = "ms pecr»t>n pvuviu^. 



.522 



APPENDIX. 









HOMESTEAD 


EXEMPTIONS 


• 




05 

C 

•CO 


Coo a try Property 


Citjj VeaperUj 


£ £ 

so 


acres 


t/alue 


"Rejereoes 


\ 


vaht 


.... 

References 


Ma. 


Cons.80c 


jftooa 




ou*llin<? 








SmUSfld K 


fcooo 


Sawo 


ftw 














Ohtr iqric 




4000. 


K5.81 k W 








ft*. 


tons.l60« 


». 


Caii.VL/SA. 


H0t t»< 


«^6O0 


Cois XL ') . 




Stct.l60<| 2500. 


tivMWtft 


exceed 


2.W0O 


-umie^ HWt, 


CdL 


Mused os a 
h.ome stead 


CcHsJSH.I- 


StttHC. 


ci<J COU 


nrrw 




DarGAl/IWH) 






Colo. 


no 

bmifaha 


jCoMs.iEir.f. 




.. .. 






^oaiGo,sv^W6'ji 


., 


-. ,. 




Cona 


no 

IllUlftJUOf 














<ooo. 


fl«n!$r.88tf70J. 


„ 


m " 




Ra. 


Ccns.Ua 




GnsX,/. 


'kdert 




Sfime 




S«rJ60« 




]J(u5».ch./04^. 


« 






Ua. 


5fla.+5« 

iur each 




cwzr. 










1600 


£87*43. 




&#IO 


CB7. r>43 


Ida. 


$0000*411000 
for each addition 
hi member. 




Same 


as c 


ounTrij 




tfS.frX*3fl», 








III. 


imttatton 




Co«s JlC 3S 










61 - 


L^rM.chttU 


,., 


" 




k 


fillased as Suck 
_ (ruf 
vDuli/'cat T CmutCt 












JlfISr.84.^988. 








b. 


CrnMa 


l)C.t/m. 


Ccns.lO 


lacire 


no lit*. 


SQine 




Slat.tbOa. 


. ,. 




1. 


.< * 


» 


Kk: 


>\0. \im 






^<imc 


<ii e 


otiwtri/ 




Ho \m. 


01000. 


€«&.».(* %.Km 


.. 






U 






CV I 67. 








ftwo. 






l?S8l.clir.^7^3. 








£a. 






Cons IE. /<wii. 








fi^ooo 


SttJMIi 




K»r.Srb7. ^644. 








IWe. 


no lim 






r 


V 


/' 




ho. \m. 


50 0. 


KS.c*6/4 63. 








ma. 


no Urn. 


600- 


(W704. 


* 


ft 


" 


$I0V. 


flO '<{W 


100. 


CiAt.C88.flrtW» 








ttteA. 


CofcAOa 




(wszr.g. 


ik 


J/30 0. 


6d/»/e 




m.qoa 




WSt.83dJ.2L61* 


<■ 


" 




Winn. 






GwX./£ 


Hot m£t< 


^fcUOO. 






SMBOc 


Ik) Iwt. 


Gai.Sr83.ch 68. 


locre /eftta/iftSW 


« 


te. 








1 






3tor.l5(lc 


J2600. 


TkMWlrtMiim 


4) Um $2.00 O. 


• W649 


We. 














St<iUW< 


1600. 


R.s89.<Amms 




'en pop. 




[#X84-&>'62; tC9lf30i; t £93?. 366. 



DEBTOR AND CREDITOR. 
HOMESTEAD EXEMPTIONS— Continued. 



523 



en 


Country Properj 


Citj Tfoperhj 


3 


acres 


mhit 


references 


\ 
*% 


(ralue 


r€jeren((s 


tticnl 






Co M ,.nr,4. 










Stat.im 


*>2S0O. 


Sf 87 7!r^322. 


faaet-t: 


btfoo 




\\t\f. 






1 








SMfoft 


2000. 


S?87cii36U |2/ots 


2.000 




Heir. 






Co„sTE,30. 








rtO ll'w. 


'500 0. 


6enS+85ch^559 


9,GH<e 


as touM^rji/ 


H.H. 
















liollrn 500. 


Genfi8chl')8§l. 


>t 


» , 


'■- 


a.J. 


. 














no lim. 


10 00. 


ftnrOZe/OW} 


,, 


., 




run. 
















nol/m <OO0 


(867ci.37^J 






•■ 


n.M. 
















no 'i*n 


1000 


ft$co6.Pi?o.S»3S'? 






,. 


nx. 


Clol/ffl. 


taoQ 


Cons X, 2-. 


lot 


$1060 


Same 


i 




'■ 


C^&l. <iS0». 


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526 APPENDIX. 

EXEMPTIONS FROM TAXATION. 
HOMESTEAD. 

These are stated in order of amounts exempt. They are 

usually general exemptions under which the homestead may be 

exempt. 

Mich. — The real and personal property of persons who by reason 
of poverty, in the opinion of the supervisor, are unable to 
contribute. 

Fla. — Property of widows who have family to support and of 
persons disabled ($200). 

N. M.— Property of head of family not exceeding $300. 

Iowa — The first year of homestead on government land, also 
homestead of widows of ex-Federal soldiers ($500). 

Mass. — Property of widows and unmarried women above 21 
years of age and of any person above 75 years; also minor 
whose father is dead ($500) ; provided, the estate does not 
exceed $1,000, exclusive of property otherwise exempt. 

Conn. — Property of resident ex-soldiers; also widow of ex- 
soldier ($1,000). 

Idaho — Property of resident widows and orphans ($1,000); pro- 
vided that estate does not exceed $5,000. 

Mont.— Property of widows and orphans ($1,000). 

GENERAL PERSONAL PROPERTY. 

Beside the exemptions contained in the foregoing the fol- 
lowing: 

N. C, $25; Ohio, $50; Md. and Wyo., $100; Kan., Mich, 'and 
S. D., $200; Ore. and Wash., 1 $300; District of Columbia, $500; 
Tenn., $1,000. 

HOUSEHOLD FURNITURE. 

Iowa, all family pictures and kitchen furniture, beds and 
bedding requisite for family; Utah, $100; Ala., $150; Idaho, 
Maine, $200; Mich., Miss, and Wis., $200 and family pictures; 
Mont, and Tex., $250; Conn., La. and Vt., $500; Mass., $i,ooo. 

LIBRARIES. 

Kan., $50; Mich., $150; Conn., $200; Iowa and Utah, $300; 
Ala., all of ministers' and all other than professional; Idaho, 
Miss., Mont, Vt. and Wis., all. 

MUSICAL INSTRUMENTS. 
Maine, $15; Conn., $25; Mich., $150. 



1 This was recently declared unconstitutional. 



EXEMPTIONS FROM TAXATION. 527 



PROVISIONS. 

S. C, $100; Wis., all necessary provisions and fuel for 6 
months; Vt, all necessary for one year, together with hay and 
feed for stock during winter; Iowa, Ky., Md. and Miss., all on 
hand for family use; Ala., all on hand for family use and for 
making of crops; Conn., all fuel and provisions for family use. 

TOOLS. 

Vt, i wagon, i sleigh and harness; Ala., i cart or wagon, all 
looms and spinning wheels for family use, $25 of farming im- 
plements, $25 of mechanics' tools, 1 sewing machine; Conn., 
$200 farming or mechanics' tools and $100 fishing apparatus; 
Idaho, $200; Iowa, $300; Mass., all farming, $300 mechanics'; 
Maine and Vt., all necessary; Miss., all necessary for mechanic, 
all farming; Md. and Mont., all. 

APPAREL. 

Ala., Conn., Iowa, Kan., Maine, Md., Mass., Mich., Miss., 
S. C, Utah, Vt, Wis., all. 

LIVE STOCK. 

N. H., 2 hogs; Ky., $50 and all poultry for use; Iowa, all 
animals not specified; Vt., all fowls, also sheep, cattle, horses and 
swine not over 4 months old; Maine and Mont., all stock under 
6 months old; Mass., mules, horses, neat cattle, less than than 
1 year old, also swine and sheep less than 6 months; Ala., 2 
cows and calves, 20 hogs, 10 sheep, all poultry; Conn., all young 
colts, calves and lambs, also swine $150, and poultry $25; Miss.,, 
all poultry, 2 cows and calves, 10 hogs, 10 sheep or goats, all 
colts under three years. 

CROPS. 

Idaho, Mont., Wis. and Tenn., all growing crops; Maine, all 
hay, grain, potatoes, orchard products and wool on hand; Ala. 
and Ky., all agricultural products on hand; Conn, and Miss., all 
produce on hand grown or growing; Iowa, one year's crops and 
all wool shorn. 

MISCELLANEOUS. 

Conn., $100 cash; Ky., all articles manufactured in family for 
use; Md., all fish is possession of fisherman; Miss., all dogs, one 
gun; N. H. and Vt., 1 watch, 1 carriage; Tenn., all articles in the 
hands of the manufacturer. 



INDEX. 



Absolutism: — As a principle of 
political organization, 11-12; 
is self limiting, 12; principles 
of absolutism involved in 
Colonial government, 40 et 
seq. 

Anti-Monopoly League, 277. 

Appointments: — The "spoils" 
system of after the Revolu- 
tion, 248; 255; 258-263; un- 
der Jackson, 263; 306; after 
Civil War, 307-309; 272-274. 

Appropriations: — Restrictions 
concerning, 321. 

Asia: — Its evolutionary signif- 
icance, 13; cause of its de- 
cay, 14. 

Banking: — Corrupt practices 
in procuring charters for, 
248-252. 

Capital and Labor: — Laws rel- 
ative to, 353-385; Appendix 

iv, 515-521. 

Carolinas: — Settlement, 69; 
form and evolution of gov- 
ernment in, 72. 

Causes of growth of Democ- 
racy, 242-284. 

Change: — The law of, 243; its 
importance in the modifica- 
tion of institutions, 243; the 
conditions which have pro- 
duced change in our insti- 
tutions, 243 et seq. 

Citizenship: — Duties of, 459- 
474- 

Civil Service Commission, 272. 

Civil Service Reform, see Mer- 
it System. 

Colonies, the American: — 
Principles of government in- 
volved in, 33-35; the as- 
sumption of sovereignty 
over, 40; the first political 
establishments in, 40; the 
fief, 40-41; Royal council, 41; 



the trading corporation, 42; 
the voluntary association, 
51; the proprietary, 62; an 
epitome of the development 
of the modern state, 72; 
summary of evolution in, 73- 

74- 

Connecticut: — Its settlement, 
53; government by voluntary 
association, 54-55; its evolu- 
tion, 35-56. 

Constitutions : — Popular co-op- 
eration in adoption of, 109; 
evolution of provisions for, 
109-114; amendments, 114; 
evolution of provisions for 
popular co-operation in, 114- 
126. 

Constitution, the unwritten: — 
Definition of, 180; its place 
in our system, 178-179. 

Constitution, written: — Defini- 
tion of, 180; place under our 
system, 178-179. 

Constitutional Convention: — 
As a means of amendments, 
118. 

Contract: — The principle un- 
derlying the modern state, 
24; the basis of American 
political establishments, 109. 

Corporations: — The economic 
and political importance of, 
22; 42-51; the advantage of 
this form of organization an 
inducement to corruption, 
248; 429; restrictions on leg- 
islative action concerning, 

345- 

Corporation, private: — Im- 
portance of in evolution of 
modern state, 22; its use in 
Colonial government, 42-51. 

Corrupt Practices Acts: — The 
English, Appendix I, 475- 
498; the Massachusetts act, 
Appendix I, 498-504. 



529 



530 



INDEX. 



Council of Censors: — Use as 
a means of amending consti- 
tutions, 119. 

Credit Mobilier, 275. 

Custom: — The law of, 242-243. 

Debtor and Creditor: — Laws 
relative to, 375-386; Appen- 
dix IV, 522-525. 

Delaware: — Colonial govern- 
ment of, 68. 

Illegal election practices, 276. 

Elections: — Provisions for 
popular co-operation in gov- 
ernment by means of, 128- 
156; a product of the evolu- 
tion of government, 128; the 
evolution of provisions for 
in the Colonies — as to quali- 
fications for suffrage, 130 et 
seq. ; residence, age and citi- 
zenship, 131; religion, 132; 
morals, 135; property, 137; 
tax, 144; services, 147; social 
status, 148; sex, 151; remov- 
al of restrictions, 152; educa- 
tional qualifications, 153-4; 
Registration, 154; Disfran- 
chisement, 155; modifica- 
tions of law relative to, 
285-306; inequality in, 394- 

4 n - . ' 

England: — Its significance in 
the evolution of the modern 
state, 29-33. 

Franchises: — Municipal fran- 
chises as inducements to 
corruption, 429-433; English 
act concerning, 433; 505; 
Wisconsin law concerning, 
433; 506-509. 

Free press: — Guarantees of 
right of, 159; restrictions on, 
164-167; constitutional guar- 
antees against libel, etc., 
167-169. 

Free speech: — Right of, 159; 
restrictions on, 164-167; pro- 
tection against slander, etc., 
169. 

Georgia: — Its corporate ori- 
gin, 48; form of organiza- 
tion, 49; its evolution, 50. 

Gerrymander, The, 255; 256; 
297-300. 



Greece: — Its evolutionary im- 
portance, 15. 

Guild, the: — Importance of, in 
evolution of modern state, 

21. 

Habit: — The law of, 242. 

Indebtedness: — Restrictions 
relative to, 343. 

Labor laws, 353-375- 

Legislature: — As an instru- 
ment for amending consti- 
tutions, 119; procedure pre- 
scribed for, 313-320; restric- 
tions relative to subjects of 
legislation, 320 et seq.; cor- 
ruption of the, 412-423. 

Maryland: — Its settlement, 63; 
form and evolution of gov- 
ernment, 63-64. 

Massachusetts Bay Colony: — 
Its corporate origin, 46; first 
form of organization, 46; its 
transformation from a cor- 
poration to a common- 
wealth, 47-48. 

Mediaeval city: — Its import- 
ance in the evolution of the 
state, 16; two classes, 17; 
the development of indus- 
trial classes in, 17-24. 

"Merit System": — As a reme- 
dy for incompetency, 390; 
arguments against, 392; as 
a remedy for "spoils" in ap- 
pointments, 412. 

Municipal government: — Sub- 
version of, 423-434. 

Netherlands: — Their signifi- 
cance in the evolution of the 
modern state, 27-28. 

New England: — The second 
colony, 41. 

New Hampshire: — Colonial 
government of, 68. 

New Haven: — Settlement, 60; 
form and evolution of gov- 
ernment, 60-62. 

New Jersey: — Form and evo- 
lution of colonial govern- 
ment, 66-67. 

New York: — Form and evolu- 
tion of colonial government, 
64-66. 



INDEX. 



531 



Nominations: — The initial 
point of reform, 408; plan 
suggested for securing de- 
sirable nominees, 408-411; 
Appendix III, 510. 

Opinions of Court: — Relative 
to referendal acts, 191-209; 
relative to labor laws, 370- 

Patronage, see "Spoils. 

Peaceable assembly: — Guaran- 
tees of right of, 158. 

Pennsylvania: — Colonial gov- 
ernment of, 67. 

Philadelphia Gas Ring, 276. 

Plymouth: — Its colonization 
an accident, 51 ; government 
by voluntary association, 51- 
52; form and evolution of 
government, 52-53. 

Popular assembly: — Its evolu- 
tion, 76; forms of used in 
the colonies, 76; in central 
government, 77; in county 
government, 77; in the bor- 
ough, 78; in the hundred, 
78; in the parish, 78-79; in 
the township and unincor- 
porated town, 79-95. 

Popular initiative: — Its evolu- 
tion and present use, 174- 

175- 

Political Activities: — Provis- 
ions for, 158-176; political 
parties necessary to, 247. 

Political Parties:— The princi- 
ples underlying, 247; the 
only instrument for express- 
ing the popular will, 286. 

Politics: — Relation of to the 
state, 157; to public wel- 
fare, 158. 

Private law: — Modifications 
relative to, 353-386. 

Problems of to-day: — Ineffi- 
ciency in office, 386-394; in- 
equality in elections, 394- 
411; the "spoils" system in 
appointments, 412; the cor- 
ruption of legislatures, 412- 
423; the subversion of muni- 
cipal government, 423-434. 

Qualifications of Electors: — 
See Elections. 



Referendum, the: — Evolution 
and present use of, 177-240; 
its use under the unwritten 
constitution, 177-190; judi- 
cial decisions concerning, 
191-209; use of under writ- 
ten constitution, 210-240. 

Representative government: — 
The result of the operation 
of law of "Survival of the 
fittest," 98; a highly devel- 
oped form of democracy, 98; 
its adoption by the Ameri- 
can states, 98; plan adopted, 
99; confusion of popular 
thought concerning princi- 
ples of, 100-108; provisions 
for popular co-operation 
made under plan adopted, 
108. 

Representatives: — Right to in- 
struct, 170; protection of, 
171-2. 

Rhode Island: — Its settlement, 
57; form and evolution of 
government, 57-59. 

Right of petition: — Guarantees 
of, 170. 

Roman Empire: — Cause of its 
fall, 15; significance of its 
fall in development of the 
modern state, 16. 

Spain: — Causes of its decline, 
25-28; recent war with, 435- 
458. 

Special local and private laws: 
Constitutional restrictions 
concerning, 348. 

"Spoils": — As an inducement 
to political action, 8; 11; 35; 
41; 74; 244; 248; institutions 
favorable to, 248 et seq. ; 
spoils system in the states, 
248-257; in the national gov- 
ernment, 257-281; its 
strength as a political de- 
vice, 282; in appointments, 
[see Appointments] also, 
307-309; 412. 

Star Route, 275. 

State, the: — Elements of, 157; 
relation of law and politics, 
157-158. 



532 



INDEX. 



State, the evolution of: — Evo- 
lutionary forces, 7; prin- 
ciples of organization, 8-9; 
primary groups, 9; conflicts 
between, 1 1 ; principles deter- 
mining supremacy — the law 
of survival, 11-12; historic 
examples, 13 et seq. ; Asia, 
14; Greece, 15: Rome, 16; 
the importance of the Mediae- 
val city, 16 et seq. ; the guild, 
21; the private corporation, 
22; the evolution of a sys- 
tem of local autonomy un- 
der broad sovereignty, 
through these, 24; the prin- 
ciple of organization shift- 
ed from conquest to con- 
tract, 24; examples of the 
operation of principles of 
political supremacy in Me- 
diaeval times, 24 et seq.; 
Spain, 25; Castile and Ara- 
gon, 26; the Netherlands, 
27; the peace of Westphalia 
— its importance, 28; Eng- 
land — the representative of 
the most advanced form of 
political life, 29; the revolu- 
tion of 1688 — its significance, 
31; the English colonies, 33; 
principles involved in their 
political organizations, 34- 



37; the United States — its 
contribution to the evolu- 
tion of the modern state, 37. 

Tobacco Ring, 275. 

Taxation: — Restrictions con- 
cerning, 324; modifications 
of statute law relative to, 
326; problems relative to, 
415; exemptions from, 52b- 
527. 

Tramways Act: — English of 
1870, Appendix II, 505. 

Tweed Ring, 276. 

United States: — Its contribu- 
tion to the evolution of the 
modern state, 37; 245-6. 

Vermont: — Its government by 
voluntary association, 62. 

Virginia: — The first colony, 
41; Charter of 1606, 41; 
1609, 42; government under 
second charter, 42-45. the 
assembly of burgesses, 45; a 
Royal province, 45. 

War, the recent: — Problems 
arising from, 435-458. 

Westphalia, peace of: — Its sig- 
nificance, 28. 

Whisky Ring, 275. 

Woman suffrage: — Qualifica- 
tions of sex, 131; evolution 
of in states, 151. 



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